PERSONS AND FAMILY RELATIONS
COMPLETE REVIEWER
Background on the Philosophy of the Civil Code:
“The Philosophy of the Civil Code”
 Tasks of the investigator of the Philosophy of Law:
1. Trace the origin of law to its sources in human
nature;
2. Connect the law with the society that evolved and
the circumstances of the time in which it originated;
3. Relate the importance of the law under the influence
of economic, social and other conditions;
4. Point out the basic elements of the law;
5. Distinguish law from ethics.
Our Civil Code was founded on the laws of Spain which was
based largely on Roman Law (Institutes of Justinian).
Corpus Juris Civilis- accumulation of old Roman Laws as
modified by early Christians.
• Ancient Roman Law was the combination of tribal
customs, royal edicts, and priestly commands.
• Ancient Romans fashioned their laws according to
their lifestyle, which at that time was greatly
influenced by religion.
Lex Jus- Command and Justice
• Relationship was not only between men but between
God and men. Crimes, at that time, were considered
a disturbance of this relation.
• Laws were designed to maintain and restore the
peace of the gods (pax decorum), peace between
men and peace between god and men.
Theory of Injury and Liability- Injuring one’s neighbor was
discouraged because such act would prompt gods to strike
back at the ‘evil doer thereby causing the imperil of the entire
community.
 It is only when law becomes distinguishable from religion
that its philosophy becomes discernible.
Philosophy of Private Roman Law
Bonus Pater Familias- Literally meaning “good father of the
family,” this was considered a standard by which one should
pattern his conduct.
- Roman law was typically, a law without ethics.
Law of Contracts and Bailments- Someone who broke his oath
is considered a danger to society and is in danger of mortal
peril.
-Roman laws of property were extremely individualistic.
-Romans only recognized two forms of association—societas
and corporation.
Two Principles to Moderate the Extreme Individualism of
Roman Law
Humanitas- Considers kindness, goodness, sympathy,
consideration for others.
• In contrast to pater familias where heads of the
family are allowed to kill his children and wife.
 Spanish Precedents of Philippine Law
Visigoths- Early settlers in Spain that were overrun by Moors
who converted the former into Christianity.
Moors- Promulgated non-barbaric laws
Alaric, Leader of the Goths- Promulgated Code of Alaric
which introduced barbaric tribal customs to Roman Law.
Fuerzo Juzgo- First great code of Spain combining Roman,
Germanic and Religious edicts.
Siete Partidas- Written by Fernando III and Alfonso X, it
contained laws based on Spanish Visigoths but patterned after
Institutes of Justinian.
• Contained 7 codes pertaining to different aspects of
law.
• First book contained natural laws, usages and
custom and administrative laws.
• Second book contained administrative laws.
• Third book contained court rules, land ownership and
possession laws and servitude laws.
• Fourth book contained laws on persons and family
relations.
• Fifth book contained laws on obligations and
contracts.
• Sixth book contains laws on succession, intestacy,
heirship and guardianship.
• Seventh book contained penal laws.
Medieval Philosophy and its Influence
St. Augustine- The state is a kingdom of the Impious
St. Thomas Aquinas- Wrote the Summa Theologica
• Lex Externa- laws based on divine reason which
governs the world.
• Lex Naturalis- Natural laws which are made known
through reason.
• Lex Humana- Positive laws which are man-made
applications of natural laws.
Penal Principles
• Justicia Generalis- obligation of restitution
• Justicia Particularis
o Justicia commutative- obligation of
restitution
o Justicia distribution- distributive justice
applying justice in geometric proportions.
Ordenamiento Alcala- spiritual aspects of contracts
Leyes de Toro- Written by the Spanish Cortes in 1502
Nueva Recopilacion- compilation of all Spanish Laws made in
1567
Novisisima Recopilacion- another compilation of Spanish
Laws.
1805- Civil Code became a model
-Four-book compilation of the Civil Code was promulgated.
• Book One: Persons and Family Relations
• Book Two: Property, Ownership and Modification
• Book Three: Modes of Acquiring Ownership
• Book Four: Obligations and Contracts
American Influence on the Civil Code
• INDIVIDUALISM became a pervading theme during
the forging of the new Civil Code.
- Bill of Rights
- Seeking redress for grievances
Intersection of Modern Constitutional Developments and
Traditional Family Law
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Constitutional Provisions
Article II, Section 12: The State recognizes the sanctity of
family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents
in the rearing of the youth for civic efficiency and the
development of moral character shall receive support of the
government.
Article II, Section 14: The State recognizes the role of women
in nation building and shall ensure the fundamental equality
before the law of women and men.
Article III, Section 1: No person shall be deprived of life,
liberty or property without due process of law, nor shall any
person be denied the equal protection of the laws.
Article XV, Section 1: The State recognizes the Filipino
family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total
development.
Article XV, Section 2: Marriage, as an inviolable social
institution, is the foundation of the family and shall be
protected by the state.
Griswold vs. Connecticut
Facts: Griswold was executive director of the
Planned Parenthood League while Buxton, his co-
plaintiff was a licensed physician who served as
director of the said league. Both were convicted
as accessories by virtue of a Connecticut birth
control law which bars them from giving
information, instruction and medical advice for
contraception, to married persons. A married
woman was examined in the league’s
headquarters along with her husband and was
given a prescription for contraception.
Held: The Connecticut Statute which forbids
contraceptives abridges the right to marital
privacy without due process of the law. The state
interest protected by the statute, which is to
prevent extra-marital relations is carried out is a
manner so sweeping as to penalize the inherent
intimacies of couples who have the right to plan
their family.
Eisenstadt vs. Baird
Facts: William Baird was tried for exhibiting
contraceptives while delivering a lecture and for
giving a young woman contraceptives. A
Massachusetts law only allows the sale of
contraceptives with prescription from a physician
or a pharmacist for married couples.
Held: The statute violates the equal protection
clause of the 14th amendment in that it
discriminates between married and unmarried
couples. The means by which the State Interest is
protected is not rationally adequate whether the
interest be prevention of pre-marital sex or health
protection. For one thing, the measure does not
prevent extra-marital relations for another, not all
contraceptives are considered dangerous. Lastly,
the discrimination makes it seem as though pre-
marital conception and sexually transmitted
disease is punishment for pre-marital sex. This
punishment is then handed out without due
process of the law.
Civil Personality
 Concepts and Classes of Persons
Person- any being that can be subject of legal relations.
Classes of Persons:
• Natural Persons- Human beings
• Juridical Persons- entities formed by the association
of men.
Personality- aptitude of becoming subject of, active or
passive, juridical relations
Status of Persons- Legal condition or class which one belongs
in society
- It is the legal or the juridical position of the
individual in society, or with regard to the rest of the
community
- It is determined by a series of personal qualities,
which respectively carry with them certain rights and
obligations.
- A person’s status serves to determine the nature and
number of rights and obligations.
Kinds of Status
- Political or Civil, depending on whether he is
considered in the light of public law or private law.
- Rights and obligations in connection with suffrage
refer to Political status while those arising from
family relations refer to Civil status.
Civil Status
- Status as a member of society (i.e. resident or non-
resident)
- Status as a member of a family
- Status with respect to the person himself (i.e. age,
mental condition, sex)
- Profession cannot be considered status because the
qualities which create a status should be inherent in
the person himself.
Characteristics of Status- the status of a person is outside the
commerce of man hence:
- It is inalienable in that it cannot be transferred to
another;
- It is imprescriptible in that it cannot be imposed on a
person;
- It cannot be the subject of compromise;
- It cannot be renounced;
- It cannot be exercised by creditors
CC Article 37: Juridical Capacity is the fitness to be the
subject of legal relations. It is inherent in every natural
person and is lost only through death.
Capacity to act which is the power to do acts that have legal
effect, is acquired and may be lost.
Juridical Capacity- legal capacity
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Capacity to Act- aptitude for the exercise of rights which is
conditional and variable, requiring intelligence and will.
CC Article 40: Birth determines personality.
The conceived shall be considered born for all purposes that
are favorable to it provided that it be born later.
Birth- removal of the fetus from the mother’s womb
Conceived Child- can be given inheritance by will or donations
CC Article 41: The fetus is considered born if it is alive at the
time it is completely delivered from the mother’s womb.
For premature birth of less than seven months, it is
considered born if it survives for at least 24 hours after its
delivery.
Separation- cutting of the umbilical cord
Test of life- complete respiration or in the case of a deceased
child, the lungs should float in water.
Viability- the child’s ability to live which is presumed if it
survives separation from the mother
Geluz vs. Court of Appeals
Facts: Nita Villanueva has gone through abortion
thrice. Oscar Lazo sued Geluz the abortionist for
pecuniary damages which was granted by the
Court of Appeals and then appealed by Geluz in
the Supreme Court.
Held: An unborn child has no juridical capacity
and as such, the parents cannot sue for pecuniary
damages on its behalf. The child not having been
born, the parent’s are not in the position to sue
on its behalf because they cannot be considered
parents if there is no child to speak of. Moral
damages cannot be granted because of the
indifference of the father.
CC: Article 42: Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the
deceased shall be determined by law, by contract or by will.
-For certain purposes, the personality is deemed to continue
in the estate of the deceased which has a legal personality
independent of the heirs.
People vs. Tirol
Facts: Ciriaco Baldesco and Bonifacio Tirol were
among the fourteen who murdered 7 members of
the family of Manibpol Kosain. They were
convicted of 7 murders and 2 frustrated murders
as Manibpol, the father and his daughter,
Undang, survived. In the course of the appeal,
while awaiting the final sentence, Baldesco died
in prison.
Held: Baldesco’s civil and criminal liabilities are
extinguished by his death however, indemnities
shall be paid for through his estate.
CC Article 43: If there is doubt between two or more persons
called to succeed each other, as to which of them died first,
the one who alleges the death of one prior to another shall
have the burden of proof.
If no proof is available then it shall be presumed that they
died at the same time.
Note: There is an issue of succession and not just
survivorship.
-Rule 123, section 69, paragraph ii:
If two or more persons die in a calamity and it
cannot be shown who died first and there are no
circumstances by which it can be inferred, survivorship is
presumed from the probabilities resulting from the strength
and age of sexes.
1. <15 years, the older is presumed to have survived
2. > 60 years, the younger is presumed to have
survived
3. <15 and >60, the younger is presumed to have
survived
4. >15, <60 for both; male is presumed to have
survived if sexes are the same, then the older one.
5. <15 or > 60 and >15 ,<60, the younger is presumed
to have survived
Joaquin vs. Navarro
Facts: During the Liberation of Manila, Joaquin
Navarro Sr., his wife Angela Joaquin, his three
daughters, Pilar, Conception and Natividad and
Joaquin Navarro Jr together with his wife Adela
Conde and friend Francisco Lopez, sought refuge
inside German Club. The three daughters were
instantly killed. Joaquin Sr., Joaquin Jr., with his
wife and friend, fled the place leaving Angela
Joaquin in the German Club. Immediately after
leaving the place, as attested by Francisco Lopez,
Joaquin Jr. was shot in the head. Minutes later,
German Club collapsed presumably killing Angela
Joaquin inside. Days later, Joaquin Sr. died in a
confrontation.
The victims were survived by Ramon Joaquin,
natural child of Angela Joaquin by her first
marriage and Antonio C. Navarro, and son of
Joaquin Navarro by his first marriage.
The Court of Appeals invoked the statutory
provision on the presumption of survivorship.
Held: The statutory provision cannot be invoked
because there are evidences as attested to by
Francisco Lopez, from which it can be inferred
that Angela Joaquin survived Joaquin Navarro Jr.
before having died herself.
CC Article 44: The following are juridical persons:
1. The State and its Political Subdivisions
2. Public corporations, institutions and entities which
are created by law
3. Private corporations, partnerships and associations
to which the law grants juridicalpersonality.
-Corporation is an artificial being created by law and as such,
enjoys certain rights and privileges that can be afforded to it.
CC Article 45: Juridical Persons such as the state and public
corporations are governed by laws recognizing them.
Private corporations are governed by laws of general
application on the subject.
-Corporations are governed by its charter and the Corporation
Law
-Private Partnerships are governed by its articles of
association and their contract.
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CC Article 46: Juridical Persons may acquire and possess
property, incur obligations and liability or criminal actions in
conformity with laws and regulations of the organization.
- Juridical capacity is extinguished upon dissolution of
the corporation, association or partnership.
CC Article 47: Properties and assets of dissolved
corporations or other entities shall be disposed of in
pursuance to the law or the charter creating them. If nothing
is specifically written, then it shall be applied for the benefit of
the region, province or municipality which it derived principal
benefits from.
 Capacity to Act and Restrictions Thereon
Presumption of Capacity
Standard Oil Co. vs. Arenas
Facts: Juan Codina Arenas, Francisco Lara del
Pino (principals) and Alipio Lacso, Vincente
Sixto and Siy Ho (sureties) assumed obligations
to pay jointly and severally to Standard Oil Co.
the sum of P3,305.76 three months from the
execution of the bond, with 1% interest per
month.
Arenas and Lara del Pino failed to pay the bond
and, as sureties, Vincente Sixto along with Siy Ho
and Alipio Lacso are compelled to pay the said
amount. The court declared Vincente Sixto in
default for having failed to show up at the trial
concerning the said bond and was ordered to pay
the defendants the amoun. Elisa Torres de
Villanueva appeared in court alleging that her
husband, Sixto Villanueva, had been declared
permanentlyinsane by the Court of First Instance
of Manila and wishes for the exemption of the
husband from paying the said bond as he is said
to be suffering from monomania of wealth.
Held: Burden of proof for insanity lies on the
person who alleges it. There were no evidence to
prove insanity, save from the declaration of the
Court of First Instance. There were, in fact, a
preponderance of evidence stating otherwise,
among these are the lack of restriction on the
husband (the husband is not habitually
insane), the apparent sound mind of Villanueva
during the execution of the contract (he
understood the nature of the bond), and he
has made contracts prior to that (the husband
had not been insane prior to the execution
of the bond).
Restrictions
CC Article 6: Rights may be waived unless it is contrary to
law, public order, public policy, morals or good customs or
prejudicial to a third person’s rights.
-Kinds of Rights:
1. Rights of Personality-rights which protect the human
personality.
2. Family Rights-rights of a person as a member of a family.
3. Patrimonial Rights- Rights referring to ownership, etc.
CC Article 38: Minority, imbecility, the state of being deaf
mute, prodigality and civil interdiction are mere restrictions
on capacity to act, and do not exempt the incapacitated
person from certain obligations.
Minority- by virtue of RA 6809, the age of majority has been
lowered to 18 from 21.
Insanity or Imbecility- includes various forms of mental
diseases. Some may sometimes only be mentally deficient.
Deaf-mute- No longer to be presumed an idiot and is now
considered capable of entering into contracts if is shown to
have sufficient mental capacity.
Prodigality- characterized by excessive drinking, gambling,
idleness or debauchery
CC Article 39: The following circumstances limit a persons
capacity to act: Insanity, imbecility, being deaf-mute, civil
interdiction, prodigality, family relations, alienage, absence,
insolvency and trusteeship.
Capacity to act is not limited on account of religious belief or
political opinion.
A married woman, eighteen years of age are qualified for all
aspects of civil life except if specified otherwise.
Note: We always presume what is normal. Otherwise, our
daily lives will be greatly affected.
A. Minority
CC Article 1327: Unemancipated minors, insane or
demented persons and deaf-mutes incapable of writing,
cannot give consent to a contract.
CC Article 1390 (1): In cases where one of the parties is
incapable of giving consent to a contract, the contract
becomes voidable* or annullable even though there was no
damage to the contracting party.
CC Article 1403 (3): A contract where both parties are
incapable of giving consent is unenforceable** unless ratified.
*A voidable contract is one whose validity can be disputed in
court as opposed to
**an unenforceable contract which is valid or binding only
between the two parties but is likewise unenforceable in
court.
CC Article 1397: Persons who are capable cannot allege the
incapacity of those with whom they contracted.
CC Article 1399: An incapacitated is not obliged to make
restitution except in so far as he has benefited from the
contract.
CC Article 1426: There is no right to demand a thing or price
from a minor who, because of lack of consent from the parent
or guardian, upon the annulment of the contract, returns the
thing or price he received.
CC Article 1427: When a minor pays according to a contract,
without the consent of his parent or guardian, the sum of
money delivered cannot be returned to the minor because the
other party is expected to have spent it in good faith.
 Effect on Contracts
Mercado vs. Espiritu-
Facts: The annulment of a deed of sale was
sought on the ground that two of the four parties
in the deed were minors when the deed was
executed. In the deed of sale the minors stated
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they were of legal age when they made the
manifestation in front of the notary public and
then signed it.
Held: Contracts signed by minors who allege they
are of legal age and in fact, appear to be so, is
valid and binding. They are therefore estopped*
from alleging otherwise.
*barred from disputing the genuineness of the deed of sale,
as in the case of Mercado vs. Espiritu.
Bambalan vs. Maramba and Muerong
Facts: Isidro Bambalan was the heir of a piece of
land owned by Vicente Lagera, deceased.
Bambalan was forced by Maramba and Muerong
to whom the mother owed P150, to sign a deed of
sale as his mother will otherwise be put in prison.
Bambalan signed the contract and both Muerong
and Maramba knew of his age as they were the
ones who procured the cedula necessary to
certify the contract.
Held: Plaintiff’s age was known to the contracting
parties as such, the contract is not valid and the
right of Bambalan as a minor can be enforced.
CC Article 1489: All persons authorized by the Code can
enter into a contract of sale. When necessaries* are sold and
delivered to a minor or a person without capacity, he must
pay a reasonable price therefore.
*Those which are indispensable for sustenance.
Braganza vs. Villa Abrille
Facts: Rosario Braganza and her sons,
Guillermo and Rodolfo, signed a promissory
note indicating that they will pay a loan
given by a certain Fernando Villa Abrille. The
loan amounted to P70,000 in Japanese
currencies and, according to the promissory
note, Braganza will pay P10,000 in legal
currencies. The two sons were minors at the
time the contract was signed.
Held: The contract, insofar as the minors
were concerned was not valid. However, they
must make restitution insofar as they
benefit. As such, they not pay 2/3 of the
amount stipulated in the contract but merely
the amount that was loaned to them which
was P1,166.00 in legal currencies.
Shields vs. Gross
Facts: In 1975, when Brooke Shields was 10,
a consent was given by her mother on her
behalf, indicating that the pictures taken by
Gary Gross may be used for whatever
purposes. Plaintiff requested the court to
prevent defendant from using her pictures.
Non-jury court prevented the defendant from
using the pictures for advertising or trade on
the grounds that court approval for a minor
was necessary to validate the consent, as
stated in Section 3-105 of the General
Obligations Law.
Held: By virtue of Section 50 and 51 of the
Civil Rights Law, a person’s pictures, name,
etc., can be used if written consent is given.
If the person is a minor, his or her parents
can give the consent. As such, the consent
was valid. Section 3-105 cannot be invoked
as Shields did not fall under the categories
stipulated under the said statutory provision.
• Effect on Marriage of Minors
FC Article 5: Any male or female aged 18 and above, may
contract marriage.
FC Article 35: The following are void marriages from the
beginning:
1. Those contracted by any party below 18 years, even
with the consent of a parent or guardian
2. Those solemnized by a person not legally authorized
to perform a marriage unless the married couple
believed in good faith that the person was authorized
3. Those solemnized without a license
4. Those bigamous or polygamous
5. Those contracted through a mistaken identity
Moe vs. Dinkins
Facts: Maria Moe and Raul Roe alleged that the
New York Domestic law 15.2 which states that
males between 16-18 and females between 14-18
must obtain parental consent to be granted
marriage, is unconstitutional. They stated that
they have a child born out of wedlock and they do
not wish for their child to grow up with the stigma
of illegitimacy. Cristina Coe and Pedro Doe filed a
motion to interfere as they had a stake at the
outcome of the trial. Cristina Coe’s mother, like
Maria’s also refused to give her consent to the
wedding but unlike Maria, Cristina’s child was yet
to come.
Held: The State’s interest as parens patriae
(guardians of the country) in protecting minor
from making immature decisions is legitimate
and the manner by which this interest is
protected is proportionate to the interest.
• Effects on Crime
RPC Article 12: The circumstances which exempt from
criminal liability are:
1. An imbecile or insane person (unless he acted during
a lucid interval),
2. A person under 9 years of age*,
3. A person over 9 years of age but under 15, unless it
can be proven that he acted in discernment, in which
case, he will be sent to an institution servicing such
children with criminal liabilities.
4. Any person who causes an injury while performing a
lawful act,
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 5. Any person who acts under a compulsion
irresistible force.
RPC Article 18: Accomplices are those who cooperate in the
execution of an offense by previous or simultaneous acts.
RPC Article 68: When the offender is a minor under 18 years
of age, if he is—
1. Over 9 years and under 15 and it has been proven
that he acted with discernment then a discretionary
penalty shall be imposed which must always be lower
by two degrees than that which the law prescribes
for such crime.
2. Over 15 years and under 18 years of age, the
penalty being the next lower penalty prescribed by
law for that crime but always in the proper period.
B. INSANITY
• Effects on Contracts
CC Article 1327: (Page 5)
CC Article 1399: (Page 6)
CC Article 1328: Contracts entered into during a lucid
interval are valid while those entered into in a state of
drunkenness is voidable.
Carillo vs. Jaojoco and Jaojoco
Facts: Adriana Carillo executed a deed of sale to
Justiniano Jaojoco. Nine days later, Carillo was
declared to be mentally incapacitated and then
died still later. Miguela Carillo appealed for the
annulment of the said contract stating that
Adriana Carillo could not have executed the deed
in a lucid state owing to the fact that the land of
over 300,000 hectares was sold for only P4,000.
Held: The contract is valid. Burden of proof of
mental incapacity lies on the person who alleges
it. No such proof exists and prior to the
confinement of the deceased in Hospicio de San
Lorenzo, she was able to manage her estate,
which had been left to her by her husband. Her
doctor and the one who executed the notarial
instrument also noted that the deceased was
responsive at the time they had been with her.
• Effect on Crimes
RPC Article 12
US vs. Vaquilar
Facts: Evaristo Vaquilar killed his wife and
daughter and as such, he was convicted of
parricide for which he appealed. Witnesses do not
know of any prior disagreement between the
deceased and the defendant which may have
caused a sudden outrage. They witnessed
however, that the defendant looked like a
madman, going after everyone in sight. His eyes
were red and penetrating and he had complained
of stomach and head ache before the event
occurred.
Held: An extremely angry man often acts like a
madman. Although no prior disagreement was
of witnessed, that is not sufficient as to say that the
defendant was in sane. Any person who allows his
or her anger to go so far as to make them
reckless does not excuse him from criminal
liability.
Dumaguin vs. AI Reynolds, EJ Harrison and
Big Wedge Company
Facts: Paulo Dumaguin was admitted to Hospicio
de San Felipe as he was suffering from paranoia.
His wife had filed for guardianship which was
granted. Dumaguin later acquired a job as a
prospector who relocates mining claims to
ANACONDA group owned by AI Reynolds and EJ
Harrison. Ten mining claims were located and as
prospector, the claims were filed under
Dumaguin’s name in the Office of the Mining
Recorder, until a deed of transfer was executed.
Dumaguin then asked the court that the deed of
transfer executed by him be considered null and
void because he did not possess the mental
capacity to execute such transfers.
Held: A person under guardianship could still
enter into a contract provided that he or she was
not in mental defect during the execution of the
contract. Also, having been employees of
ANACONDA group, it was within the confines of
their job to execute such transfers. Nevertheless,
if he did own the mining claims, it would have
been aptly named “deed of transfer.”
• Effect on Marriage
FC Article 45: A marriage may be annulled for any of these
causes:
1. If the party was over 18 and under 21 and the
marriage was solemnized without the consent of
parents or guardian, unless after reaching the age of
21 the couple has continued to cohabit,
2. Either party was of unsound mind unless the party
has come to reason and freely cohabit,
3. Consent by either party was obtained by fraud or
force,
4. Either party was physically incapable of
consummating the marriage and the incapacity is
incurable,
5. Either party was afflicted with STD which is
incurable.
FC Article 47: The persons who can file for an action for
annulment are:
1. By the party whose parent or guardian did not give
consent, within 5 years after attaining the age of 21,
or by the parent or guardian before the minor
reaches 21,
2. By the sane spouse who did not know of the other
person’s insanity or by the guardian of the insane or
by the insane spouse during a lucid interval.
3. By the injured party, within years of the discovery of
fraud or force,
4. For the injured party, in relation to STD and
Impotence, after 5 years of marriage.
C. State of Being Deaf-Mute
CC Article 1327: (Page 5)
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CC Article 807: If the testator* is deaf or a deaf-mute, he
must be able to personally read the will or designate two
persons to read it and communicate with him in a practicable
manner.
*A person whose property is transmitted through a will.
CC Article 820: Any person of sound mind and legal age, not
blind, deaf or dumb and able to read and write, may be a
witness to the execution of a will.
People vs. Sasota
Facts: Fidel Sasota was found guilty of raping
Rufina Barbuco, a deaf and dumb girl. The crime
was witnessed by Severa Barbuco, a seven-year
old girl who testified along with Rufina. The
defendant alleged that neither Rufina nor Severa
can testify as one was deaf and dumb and the
other too young.
Held: The theory that deaf and dumb persons
cannot testify as a competent witness has been
dispelled (People vs. de Leon) because it is not
sufficient. For as long as the requisite intelligence
required to understand the nature of the oath can
be proven then a deaf-mute can testify. In
relation to the seven year old, the court has held
that a child can testify as long as he or she can
understand the nature of the oath.
Director of Lands vs. Abelardo
Facts: Director of land claims that the failure of
Fulgencia and Jose Dino to register any claim to
lots nos. 773 and 810 which was previously
owned by their grandmother, is due to their being
deaf and dumb. As such, they were unable to act
within the prescriptive period within which they
can register their claim.
Held: The state of being a deaf-mute is not
considered an incapacity that will prevent a
person from running of a prescriptive period.
D. Prodigality
RC Article 92 (2): Persons suffering the penalty of civil
interdiction, hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those of unsound mind and
other similar cases, cannot, without aid, take care of
themselves and manage their property.
Martinez vs. Martinez
Facts: Pedro Martinez appealed to the Supreme
Court to declare his father, Francisco Martinez, a
prodigal. Pedro Martinez alleged that since his
father’s marriage to Anastacia Ilustre, his father’s
second wife, the wide and her parents have been
given properties amounting to $200,000. He
added that the administration has also been
turned over to his father’s wife. Defendant stated
that the son had, prior to the marriage, managed
the estate by power of attorney but it was
revoked because the son has mismanaged and
misappropriated the property. The estate was
said to have flourished since it was managed by
Francisco Martinez’ wife and one half has also
been in the ownership of Pedro Martinez, him
being the sole heir of the first wife.
Held: Acts of prodigality must show a morbid
state of mind and a disposition to spend, waste
and lessen the estate to such an extent as to
expose the family to poverty.
E. Civil Interdiction
RPC Article 34: Civil interdiction shall deprive the offender of
the rights of parental authority or guardianship, either as to
person or property.
RPC Article 11.2: Relatives that can be defended (without
criminal liability): spouses, ascendants, descendants,
legitimate, natural or adopted brothers and sisters, relatives
by affinity in the same degree or relatives by consanguinity of
the 4th civil degree.
RPC Article 13.5: Acts which are committed in immediate
vindication of a grave offense to the one committing the
felony (are mitigating circumstances).
CC Article 54: Males 16 years upwards may contract
marriage while females 14 years upwards may contract
marriage.
CC Article 123: A person under civil interdiction may
contract marriage provided that there is a court designated
guardian available to witness the said marriage.
F. Family Relations
FC Article 37: Marriages between ascendants and
descendants of any degree or between brothers or sisters full
or half-blood, are considered incestuous and void.
FC Article 87: Donations or grants given directly or indirectly
between spouses during marriage are void with the exception
of moderate gifts. The same is true for persons living together
as husband and wife.
- This is dictated by the principle of unity of
personality of spouses.
- Any person prejudiced by the donation or grant may
question its validity.
CC Article 1109: Prescription* does not run between
husband and wife even though there is a separation of
property agreed upon in the marriage settlements. The same
is true between parents and children that are still minors or
those considered insane and between guardian and ward.
CC Article 1490: Husband and wife cannot sell property to
one another when separation of property has been agreed
upon and there has been judicial separation.
G. Alienage
PC Article 12-
Section 2: All natural resources, with the exception of
agricultural lands, are owned by the state. As such,
exploration, development and utilization are under its full
control and supervision. The State may undertake such
activities directly, in co-production, joint venture or
production sharing with Filipino citizens or corporations or
associations where 60% of the capital is owned by Filipinos.
7
The same is true for agreements with foreign-owned
corporations.
Only small-scale utilization of marine life is allowed.
Section 7: No private lands shall be transferred to individuals,
corporations or associations qualified to acquire land, except
in cases of hereditary succession.
Section 8: Natural-born citizens of the Philippines who has
lost citizenship maybe a transferee of private lands subject to
limitations provided by law.
Section 11: Franchise, certificate or any form of authorization
for operation of public utility may be granted to citizens of the
Philippines or corporations, associations or organizations
where at least 60% of the capital is owned by Filipinos. All
executive and managing officers of public utilities must be
citizens of the Philippines.
RC Rule 3, Section 4: A married woman cannot be sued
alone without joining her husband except:
1. When they are judicially separated,
2. If they have been separated for at least 1 year,
3. When there is a separation of property agreed upon
in marriage settlements,
4. If the administration of all the property has been
transferred to her,
5. When the litigation is between husband and wife,
6. When the suit involves her paraphernal property,
7. When the action is a civil liability arising from a
criminal liability,
8. If the litigation is based on the profession,
occupation or a business in which she is engaged,

PC Article XIV-
Section 4: Educational institutions, apart from those owned
by religious groups or mission boards must be owned solely
by citizens of the Philippines or corporations or associations at
wherein 60% of the capital is owned by citizens. Congress
may legislate to increase Filipino equity participation.
No educational institution shall be established exclusively for
aliens. No group of aliens shall comprise more than one third.
These provisions do not apply to schools established for
foreign diplomatic personnel and their dependents.
Revenues, grants and endowments shall be exempt from
taxes.

PC Article XVI-
Section 11: Ownership and management of mass media shall
be limited to citizens of the Philippines or corporations,
cooperatives, associations wholly owned and managed by
such citizens.
Marriage
Congress shall prohibit monopolies in commercial mass media
Nature of Marriage
for the sake of public interest.
-Procedure by which a man and a woman become
Filipino citizens or corporations and or associations wherein
husband in wife, uniting for life.
seventy percent of capital is owned by citizens of the
-A status involving duties or responsibilities which
Philippines shall be allowed to engage in the advertising
are no longer matter for private regulations but the concern
industry. All executive and managing officers must be citizens
of the state.
of the Philippines.
-Civil or social institution which is the foundation of a
family and origin of domestic relations.
H. Absence
Purposes of Marriage
CC Article 390: An absentee shall be presumed dead for all
1. Reproduction
purposes, after an absence of seven years.
2. Education of the offspring
For purposes of succession, absentee shall be presumed dead
3. Mutual help
after 10 years or 5 years for those 75 and above.
Immediate purpose: constitute a complete and perfect
CC Article 391: The following are presumed dead for all
community between two individuals of different sexes.
purposes:
Remote purpose: preservation of human race.
1. Person on board a lost sea vessel or aeroplane,
2. Person missing for 4 years after taking part in a war,
FC Article 1: Marriage is a special contract of permanent
3. Person who after being in danger of death has not
union between a man and a woman entered into in
been heard from for four years.
accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable
FC Article 124: Conjugal partnership property belongs to
social institution whose nature consequences and incidents
spouses, jointly. In case of disagreement, the decision of the
are governed by law and not subject to stipulation, except
husband shall prevail and the wife may appeal for remedy in
that marriage settlements may fix the property relations
court within 5 years since the implementation of the contract.
during the marriage within the limits provided by this code.
Spouse may assume sole powers in case the other is
incapacitated.
Ordinary Contracts vs. Marriage Contracts:
Encumbrance or disposal of property shall be with the
- Ordinary contracts may be entered into by any
authority of the court or with the written consent of the
number of persons of whatever sex while marriage
spouse.
can be entered into only by one man and one
A contract with the authorization of the spouse is binding.
woman.
- In ordinary contracts the agreement of the parties
I. Marriage
have the force of law between them while in
CC Article 2259: The capacity of a woman to enter into
marriage, the law fixes the duties and rights of the
contract is governed by the civil code even if the marriage
parties.
occurred prior to the enactment of the said code.

8
 - Ordinary contracts can be terminated by mutual
agreement of the parties while marriage cannot be
so terminated. Neither can it be terminated even
though one of the parties subsequently becomes
incapable of performing his part.
- Breach of ordinary contracts gives rise to an action
for damages while breach of the obligations of a
husband or a wife does not give rise to such an
action..
- The State’s role is to protect the family as the foundation of
the nation.
PC Article XV-
*The states role is to protect the family as the foundation of
society.
Section 1: State recognizes the Filipino family as the
foundation of the nation.
Section 2: Marriage is an inviolable social institution.
Section 3: State shall defend-
1. The right of spouses to found a family in accordance
with their religion and the demands of responsible
parenthood.
2. The right of children to assistance, and special
protection.
3. The right of family to a family living wage income.
4. The right of families to participate in the planning
and implementation of policies and programs that
affect them.
Section 4: The family has the duty to care for its elderly
members.
Breach of Promise
CC Article 19: Everyone must act with justice, give everyone
his due and observe honesty and good faith.
-The exercise of a right ends where the right disappears and
it disappears when it is abused, to the prejudice of others.
Good Faith- abstaining from taking advantage of others.
-A bride or groom who breaks an engagement without reason
causing moral and material injury to the other party is liable
for damages especially if the decision is made just before the
wedding and after a long engagement.
CC Article 20: Every person who willfully or negligently
causes damage to another shall be liable for indemnity.
-A person is required to act with prudence and diligence.
CC Article 21: Any person who willfully causes loss or injury
to another in a manner contrary to morals, good customs or
public policy is liable for damages.
-Acts which are not unlawful but are likewise contrary to
morals or good customs, public order or policy shall fall under
this provision. This article was created to provide adequate
legal remedy.
Willful Act- an act done with knowledge of the effect
- Seduction, wherein a woman who was promised with
marriage gives herself to a man but was later left by
the man qualifies as deceit and may be used as basis
for indemnity.
- So long as there is a wrongful act and a resulting
injury, there should be civil liability.
-The injury must be the proximate cause of an act.
-No person shall unjustly enrich himself at the expense of
another.
CC Article 2176- Whoever by act or omission causes
damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence is
considered a quasi-delict and is governed by law.
Wassamer vs. Velez
Francisco Velez and Beatrice Wassmer decided to
get married on Septemeber4, 1954. On Sept. 2,
Velez left a note saying that the said marriage
has to be postponed. The following day, another
note arrived saying the marriage was still going
to push through. After that, plaintiff has never
heard from him.
When plaintiff filed for evidence before the clerk
of court, the defendant was held in default and as
such, plaintiff was awarded P2,000 actual
damages, P25,000 moral damages and P2,500 for
attorney’s fees. Defendant filed a motion for relief
and court gave both parties enough time to settle
outside of court. No such settlement happened
and several times, the defendant asked for
extension.
Held: The manner by which the defendant left the
plaintiff, only a few days before the wedding, was
contrary to good customs. At that time, the
wedding has been aptly prepared and the visitors
had been notified and so, that the plaintiff was
affected is no longer in question. Civil indemnity
is due in this case.
Tanjanco vs. CA
Facts: Apolinario Tanjanco and Arceli Santos are
both of adult age. Santos consented to have
sexual intercourse with Tanjanco with the
promise of marriage. After almost a year of such
relationship, Santos conceived of a child and due
to humiliation she left her job at IBM Philippines
where she received P230/ month. Tanjanco, then
refused to marry Santos who was no longer able
to support herself and the child. She was then
prompted to sue for moral damages and to
compel the defendant to support herself and the
child.
Held: Article 21 cannot be invoked in this case as
it was already evident to the woman that
Tanjanco no longer had any intention of marrying
her even before she conceived of a child.
Seduction, an example given by the code
commission under Article 21 connotes deceit,
enticement, and abuse of confidence. Such
features are not present in the case wherein
there where several instances of sexual
intercourse for a period of almost one year.
De Jesus vs. Syquia
Cesar Syquia had sexual relations with Antonia
Loanco. Through a letter to a priest, he had made
it apparent that he wanted the child carried by
Antonia to be recognized as his. In several other
letters, he referred to the child as “junior.” For a
9
while the two partners lived under one roof with
Antonia’s mother, after the birth of the child.
Another child was conceived, upon which, Syquia
left, never to be heard from again. At the
christening of the child, Antonia named the child
Ismael Loanco.
Antonia then filed a suit against Syquia, to
recover P30,000 for damages for breach of
promise to marry and to pay for her maintenance
along with the two children. Trial court ordered
that the first child be recognized and for Syquia
to pay a monthly maintenance of P50.
Held: Supreme Court affirmed the judgment on
the grounds that the breach of promise was not
satisfactorily proven, owing to the fact that the
sexual relations continued even after the birth of
the first child and even though there was still no
marriage. In relation to the second child being
recognized, there was no proof to compel such
action.
Marriage Models
“Economics and the Public Purpose”
By John Kenneth Galbraith
-Industrialization eliminated the need for women to work.
-Rising standards of popular consumptions saw the need for
household managers—married women.
-The lady of the house is the chief menial to the household.
-Diversity and consumption increase made household
management complex thereby requiring management skills.
-Women were converted into “crypto servants” contributing ¼
of the Gross National Product by way of efficient
consumerism.
Household- the disguise for the exercise of male authority
Neoclassical Consumer Equilibrium- the distribution of income
to various uses so that satisfactions are roughly equal to the
margin
-Decisions depend on who earns a living.
-Women had only the power to implement decisions and not
make them.
-“The service of women to the economy is based on her sense
of duty and capacity to affection.”
Graham vs. Graham
Facts: On September 17, 1940, Sydney Graham
contracted with Margarethe Graham to the effect
that Margarethe shall pay Sydney the amount of
$300 per month until such time that the parties
no longer desire to continue with such an
arrangement. On July 11, 1933, the married
couple divorced. The plaintiff then filed a suit
against his former wife in order to claim the
remaining amount of money that he should be
accorded by virtue of the contract. Plaintiff
alleged the contract was done so that he can
accompany his wife on her travels.
The total amount claimed until November 7, 1939
was $25,000 with 3% interest per annum. The
defendant on the other hand alleged that the
contract was not within the powers of a married
woman under a Michigan law and that the divorce
should have effected the termination of the said
contract.
Held: Under the Michigan law invoked by the
defendant, women have no general power to
enter into a contract except in separation of
properties. Also, private contracts between
married individuals which are contrary to public
policy are unenforceable by virtue of Sec. 587
entitled “Bargain to Change Essential Obligations
of Marriage.” The court held that if contracts
which are contrary to the essential obligations of
marriage wee permitted, it would invite an
endless field of controversy and litigation and
would destroy the element of flexibility needed in
making adjustments to the new conditions of
marital life.
 Challenges to the Traditional Marriage Models
“Looking Backward in Order to Look Forward”
By William H. Chafe
-In the 1970’s, the status of women had already transformed
because of social and economic forces.
-After the “baby boom” of the 1950’s, there was a downturn
in the birthrate such that by 1970’s, the birthrate had reached
a level of zero population growth.
-There was a trend in later marriages and of young women of
child bearing age joining the labor force.
-Women also begun entering professions that have almost
exclusively been for men.
-By 1970’s, the traditional norm of stay-at-home-mothers had
already changed.
Multiplier Effect- shifting values interacted with changing
economic conditions to create a new pattern of family and
work life.
The Changing Status of Women
Dunn vs. Palermo
Facts: Rosary Palermo who is married to Denty
Cheatham has continued to use her maiden name
since her marriage. Because of a state-wide
compulsory registration law, Palermo lodged
information of her change of address listing her
name as Palermo. The registrar was prompted to
purge the name of Palermo from the registration
list because Palermo refused to change her
name, citing Sec. 2-206 which states that
registration of a person shall be purged 90 days
after he changes his name or otherwise.
Palermo went to court seeking that the
interpretation of the said rule be declared
erroneous or the statute be declared
unconstitutional, it being in violation of the 14th
amendment due process and equal protection
clause.
Held: The use of a husband’s name is customary
and as such, the common law does not compel
women to use their husband’s name. In the past,
the husband’s name was used to indicate the
marital status of a woman. A person has a
common right to adopt any name he or she wants
to be known with. The use of husband’s name
was mainly for indicating marital status. It was
more by practice rather than by law.
10
 Private Contracts: When Valid, When Void?
In Re: Santiago
Facts: This is an administrative case concerning
Atty. Roque Santiago who executed a document
wherein it was stipulated that Ernesto Baniquit
and his wife Soledad Colores were from then on,
separated, allowing either parties to marry again
without danger of becoming subject to any legal
action from either of the two parties. With this,
Baniquit got married to Trinidad Aurelio.
Santiago’s mistake, according to him, was due
mainly to his idea that a seven-year separation
will allow for such action. In finding out his
mistake, he called on Baniquit who at that time,
was already married to someone else.
Held: The advice given and the document tended
to subvert the vital foundation of the family.
Marriage, as stated in Article 1 of the Family
Code, is not subject to the stipulation.
Selanova vs. Mendoza
Facts: Judge Alejandro Mendoza prepared and
ratified a document extrajudicially liquidating the
conjugal partnership of Saturnino Selanova and
Avelina Ceriza. It was stipulated in the document
that the spouses should withdraw the adultery
and concubinage cases each had filed against
another. The defendant ratified the document
with the assurance that the spouses would ask
the Court of First Instance to approve the
agreement. According to the respondent, the
basis of the decision was Part 4 of Article 191 of
the Civil Code which stated that husband and wife
may agree upon the dissolution of marriage
subject to judicial approval.
Held: Respondent’s action was void as it violated
Article 221 of the Civil Code which states that
contracts and any extrajudicial agreements are
void.
Judicial sanction for annulment of marriage
should have been secured before hand.
 Requisites of Marriage
Essential Requisites of Marriage
FC Article 2: Essential Requisites of marriage are—
1. Legal capacity of contracting parties who must be
male or female.
2. Consent that is freely given in the presence of a
solemnizing officer authorized by the state to
conduct such marriage.
 Legal Capacity of Male and Female
Jones vs. Hallahan
Facts: Two women appealed the decision of the
Circuit Court which held that both of them cannot
marry one another. Plaintiffs claim that the
decision abridges the Equal Protection clause and
Due Process clause of the fourteenth
amendment.
Held: Marriage, in many widely circulated
dictionaries, are defined as a “union between
man and woman,” and there is no authority to
the contrary.
The plaintiffs were not being prevented by the
statutory provision to marry. Rather, they were
being prevented by themselves.
Goodridge vs. Department of Public health
Facts: In March and April of 2001, each of the
plaintiff couples attempted to obtain the marriage
license from their respective city or town clerk’s
office. After their requirements had been
completed, the clerk in each case refused to
accept the notice of intention to marry or denied
a marriage license on the ground that
Massachusetts does not recognize same-sex
marriages. Plaintiffs filed a suit alleging that
exclusion of same-sex couples from access to
marriage license and civil marriage and its
benefits is in violation of Massachusetts law.
Held: Without the right to marry or the right to
choose to marry, one is excluded from the full
range of human experience and denied full
protection of the laws for one’s commitment to
lasting human relationships.
Held: Defense of procreation is not sufficient
because same-sex couples are still capable of
procreation although their methods may not be
traditional. Likewise, these couples are capable of
rearing children in such a setting, affirmed by the
Massachusetts law which allows adoption for
same-sex couples. Same-sex couples should be
afforded the same benefits as opposite-sex
couples by virtue of the Equal Protection and Due
Process clause of the 14th amendment.
Baker vs. State
Facts: Same-sex couples brought action against
the State, city and town seeking declaratory
judgment that the refusal to issue them marriage
licenses violated the common benefits clause of
the Vermont constitution. Plaintiffs claim that
denial of marriage license was tantamount to
denial of legal benefits and protections of marital
relations.
Held: Government is established for the common
benefit of the people and community as a whole.
The state interests in preventing the marriage of
same-sex couples which are: Procreation and
uniformity with other states, while valid, should
not be employed through a means that would
prevent same-sex couples from acquiring the
benefits inherent to married life.
Defense of Marriage Act- Defense of marriage as an
institution, as upheld by 37 states in the United States
- 4 States have explicitly banned same-sex marriages.
- Vermont and Massachusetts have come up with
legislation that would allow same-sex couples to
enjoy the benefits that opposite-sex married couples
11
 enjoy. In Vermont, it is done through a civil union, in
Massachusetts, same-sex marriage is now allowed.
 Consent Freely Given
FC Article 4: Marriage is rendered void in the absence of any
of the essential requisites (stated in Article 2 of FC). If there
is any irregularity in the formal requisites, the validity shall
not be affect validity but either or both parties are civilly,
criminally and administratively liable.
FC Article 45: (page 8)
People vs. Felipe Santiago
Facts: Felipe Santiago raped Felicita Masilang, 18
years old, a few paces from Manila North Road.
After the deed was done, defendant brought the
girl to the house of Agaton Santiago, the
defendant’s uncle, who later found a protestant
minister who administered the marriage of
Santiago to Masilang. After the marriage, the
victim was given a few pesos and was told to
leave.
Held: The marriage is void first, because the
victim did not have his father’s consent to marry
and second, because the victim was under duress
and was thereby incapable of giving her consent
freely. Also, Felipe Santiago did not really intend
to marry Felicita Masilang. He only did so to
escape criminal liability. As such, the marriage is
void because the consent of Santiago is not freely
given. The consent referred to here is not the
consent of Felicita but that of Felipe who had no
intention of marrying Felicita.
Buccat vs. Mangonon de Buccat
Eigenmann vs. Guerra
Facts: Petition was instituted by Eduardo
Eigenmann to annul his marriage to Maryden
Guerra on the grounds that he was a minor who
needed consent from his parents when he
married (16-20 years old) and such consent was
not given. He alleged that he was threatened and
coerced into the marriage and that the
solemnizing officer who administered the
marriage license was not authorized thereby
rendering the said license void ab initio.
Held: The marriage license confirmed that
plaintiff misrepresented himself to be of legal age
there for he is subject to an estoppel preventing
himself to invoke minority. (this is as to the
needed consent and not the lack of minimum
age) The said threat was not sufficient to hold
that he was coerced into consenting to the
marriage because it was not really threatening.
Lastly, marriages solemnized by a license
obtained wrongfully, merely renders the marriage
to be irregular and is not null, void or voidable.
 Formal Requisites
- External to the parties
Formal Requisites of Marriage
FC Article 3: Formal Requisites of Marriage—
1. Authority of the solemnizing officer,
2. Valid marriage license except in cases provided,
3. Marriage ceremony with the appearance of
contracting parties before a solemnizing officer,
4. Two witnesses that are of legal age,
5. Declaration that they take each other as husband
and wife.
Authority of the Solemnizing Officer
FC Article 7: Marriage may be solemnized by:
1. Any incumbent member of the judiciary within the
court’s jurisdiction;
2. Any priest, rabbi, imam or minister of any church or
religious sect duly authorized by his church or
religious sect and registered with the civil registrar
general, acting within the limits of the written
authority granted him by his church or religious sect
and provided that at least one of the contracting
parties belongs to the solemnizing officer’s church or
religious sect;
3. Any ship captain or airplane chief only in the cases
mentioned in Article 31;
4. Any military commander of a unit to which a chaplain
is assigned, in the absence of the latter, during a
military operation, likewise only in cases mentioned
in Article 32;
5. Any consul-general, consul or vice-consul in the case
provided in Article 10.
- Without registration of the solemnizing officer with
the office of the Civil Registrar the marriage is void.
The same is true if the solemnizing priest s not
authorized by his church.
- A resulting irregularity that will not affect the validity
of the marriage is one where there is mistake of fact
and not mistake of law.
- Ignorantia legis non excusat
FC Article 10: Marriages between Filipino citizens abroad
may be solemnized by a consul or vice-consul of the Republic
of the Philippines. The issuance of the marriage license and
the duties of the local civil registrar and of the solemnizing
officer with regard to the celebration of marriage shall be
performed by the consular official.
FC Article 31: A marriage in articulo mortis* between
passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is
at sea or the plane is in flight but also during stopovers at
ports of call.
*At the point of death
FC Article 32: A military commander of a unit, who is a
commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons
within the zone of military operation, whether members of the
armed forces or civilians.
FC Article 4: The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in article 35 a.
A defect in any of the essential requisites shall
render the marriage voidable as provided in article 45.
An irregularity in the formal requisites shall not
affect the validity of the marriage but the party or the parties
responsible for the irregularity shall be civilly, criminally or
administratively liable.
FC Article 35 (2): The following marriages shall be void from
the beginning:
12
(2) Those solemnized by any person not legally authorized to
perform marriages unless such marriages were contracted
with either or both parties believing in god faith that the
solemnizing officer had legal authority to do so.
CC Article 3: Ignorance of the law excuses no one from
compliance therewith.
Navarro vs. Domagtoy
Facts: This is an administrative case filed by
Rodolfo G. Navarro against Hernando C.
Domagtoy who allegedly solemnized the
marriage between Gaspar A. Tagadan and Arlyn
Borja despite knowledge that the groom was only
separated with his former wife who was already
absent for seven years. Also, the respondent
judge also solemnized the marriage of Floriano
Sumaylo and Gemma del Rosario outside the
jurisdiction of the respondent.
Held: On the second marriage, there is a resulting
irregularity because marriage may only be
conducted elsewhere only if there is a written
request coming from both parties. In the case at
hand, the request only came from one party.
Judges may only officiate weddings within their
jurisdiction otherwise there will be an irregularity
with the formal requisites. Article 8 states that
marriages may be conducted elsewhere provided
that there is written request coming from both
parties to the marriage.
Aranes vs. Occiano
Mercidita Aranes charged presiding judge
Salvador Occiano of gross ignorance of the law
for solemnizing her marriage with her husband
without a license and outside his jurisdiction.
Respondent judge claims that he agreed to
solemnizing the marriage provided that the
license will be delivered to him on the same day
however, no such license ever came. No record of
the application for a marriage license because it
was denied when the husband failed to present
the death certificate of his first wife.
Held: Respondent judge is liable for failure to
ascertain the existence of a marriage license.
Presenting a marriage license after the
solemnization of the wedding does not, in any
way validate the marriage. Also, under BP 129,
the authority of the judges of inferior courts to
solemnize marriage is confined to their territorial
jurisdiction. The authority of the judge to
solemnize a marriage is derived from the
marriage license.
 Marriage License
FC Article 9: A marriage license shall be issued by the local
registrar of the city or municipality where either contracting
party habitually resides, except in marriages where no license
is required in accordance with chapter 2 of this Title.
FC Article 34: No marriage shall be necessary for the
marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal
impediment to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person
authorized by law to administer oaths. The solemnizing officer
shall also state under oath that he ascertained the
qualifications of the contracting parties and found no legal
impediment to the marriage.
PD965: A decree requiring applicants for marriage licenses to
receive instructions on family planning and responsible
parenthood.
Republic of the Philippines vs. CA and
Castro
Facts: Angelina M. Castro filed a petition for a
judicial declaration of nullity of her marriage to
Edwin F. Cardinas which was granted by the
Court of Appeals. Then petitioner Castro was
separated after four months of marriage with
Cardinas. As such, Castro sought for the nullity of
her marriage before she left for the US. Plaintiff
Republic of the Philippines challenged the
decision of the appellate court because Castro’s
claim that there was no marriage license was
only supported by a “due search and inability to
find” certification issued by the local civil
registrar of Pasig and Caustro’s own testimony.
Held: No marriage shall be solemnized without a
marriage license otherwise it will be rendered
void ab initio. The certification of “due search and
inability to find” is sufficient to hold that no proof
of license exists and the testimony is sufficient
because the marriage was a secret marriage and
under the circumstances it is understandable that
there can be no other witness.
Moreno vs. Bernabe
Facts: Marilou Nama Moreno filed the complaint
against Judge Jose C. Bernabe for grave
misconduct and gross ignorance of the law.
According to the complainant, respondent judge
solemnized her marriage with Marcelo Moreno,
assured that the contract will be released after 10
days. Respondent judge claims that the failure to
produce the contract was due to the failure of the
Local Registrar of Pasig to release the marriage
license. He was assured, when he solemnized the
marriage, that the license was forthcoming as
such, he agreed to conduct the ceremony but
reminded the plaintiff and her husband of the
consequences of conducting the ceremony
without a marriage license.
Held: Marriage ceremonies, absent of a marriage
license, are void ab initio.
People vs. Borromeo
Facts: Defendant Elias Borromeo appealed his
conviction of parricide and his sentence of
reclusion perpetua. On July 3, 1981, defendant
killed his wife, Susana Borromeo. He claimed that
Susana Borromeo was not his wife because no
13
marriage contract was executed during their
marriage.
Held: Defendant testified that he was indeed,
married to Susana Borromeo. Nevertheless, had
there been an actual absence of a marriage
contract, persons living together in apparent
matrimony are presumed to be married unless
evidence is presented to show otherwise. “Such is
the common order of society. If parties were not
what they hold themselves to be, they will be
living in constant violation of the law.”
Seguisabal vs. Cabrera
Facts: Andon Seguisabal charged Judge Jose
Cabrera of gross misconduct and grave ignorance
of the law for solemnizing the marriage of Jaime
Sayson and Marlyn Jagonoy without the requisite
marriage license. The respondent was also said to
have failed to transmit a copy of the marriage
contract he signed to the Office of the Civil
Registrar of Toledo City within the required 15
days. The Respondent judge contended that he
agreed to solemnize the marriage of the two
parties with the agreement that the marriage
license will be given in the afternoon, which the
couple failed to do. Years later when Marlyn
Jagonoy returned asking for the marriage contract
so that she can claim the pension of her
deceased husband, respondent judge issued a
marriage contract despite of the knowledge that
there is still no marriage license as the deceased
and his widow failed to attend a family planning
session.
Held: Cabrera was expected to follow the dictates
of his profession. His decision to commit an act
outside the boundaries of the law cannot be
justified by good faith. Marriages solemnized
without a marriage license is void ab initio.
 Ceremony
FC Article 6: No prescribed form or religious rite for the
solemnization of the marriage is required. It shall be
necessary however, for the contracting parties to appear
personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that they
take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed by
the contracting parties and their witnesses and attested by
the solemnizing officer.
In case of marriage in articulo mortis, when the
party at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses to the
marriage to write the name of said party, which fat shall be
attested by the solemnizing officer.
Requisites of Marriage Ceremony:
- For both parties to appear personally before the
solemnizing officer;
- That there is presence of not less than two witnesses
of legal age;
- That both party take each other as husband and wife
FC Article 8: The marriage shall be solemnized publicly in the
chambers of the judge or in open court, in the church, chapel
or temple, or in the office of the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in
cases of marriages contracted on the point of death or in
remote places in accordance with Article 29 of this Code, or
where both of the parties request the solemnizing officer in
writing in which case, the marriage may be solemnized at a
house or place designated by them in a sworn statement to
that effect.
- Whatever venue is chosen, it must be within the jurisdiction
of the solemnizing officer.
FC Article 28: If the residence of either party is so located
that there is no means of transportation to enable such party
to appear personally before the local civil registrar, the
marriage may be solemnized without the necessity of a
marriage license.
- Applicable when one of the parties is handicapped
FC Article 29: The solemnizing officer shall state in an
affidavit the executed before the local civil registrar or any
other person legally authorized to administer oaths that the
marriage was performed in articulo mortis or that the
residence of either party, specifying the barrio or barangay, is
so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar
and that officer took the necessary steps to ascertain the
ages and relationship of the contracting parties and the
absence of legal impediment to marriage.
FC Article22: The marriage certificate shall state:
1. Full name, sec and age;
2. Citizenship, religion and habitual residence;
3. the date and precise time of the celebration;
4. That the proper marriage license has been issued
according to law;
5. That either or both of the contracting parties have
secured the parental consent (if it applies);
6. That either or both of the contracting parties have
complied with the legal requirement regarding
parental advice (where it applies);
7. That the parties have entered into a marriage
settlement, if any, attaching a copy thereof.
FC Article 23: It is the duty of the solemnizing officer to
furnish either of the contracting parties the original of the
marriage certificate and to send the duplicate and triplicate
copies not later that fifteen days after the marriage, to the
local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting the copies of
the marriage certificate. The solemnizing officer shall retain in
his file the quadruplicate copy of the marriage certificate, the
original of the marriage license, and the affidavit of the
contracting party regarding the solemnization of the marriage
in another place.
FC Article 24: It shall be the duty of the local civil registrar
to prepare the documents required and to administer oaths to
all interested parties without any charge in both cases. The
documents and affidavits filed in connection with applications
for marriage licenses shall be exempt from documentary
stamp tax.
 Requisites of a Marriage Ceremony
Martinez vs. Tan
Facts: Rosalia Martinez and Angel Tan signed a
petition directed to the Justice of Peace stating
therein their agreement to contract marriage. The
document was signed by the defendant and
plaintiff and the Justice of Peace and two
14
witnesses namely Zacharias Esmero and Pacita
Ballori. A certificate of marriage was likewise 3. That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have
signed by the Justice and the witnesses attesting acquire properly through their actual joint contribution of
that a marriage did ensue. Plaintiff alleged that money, property or industry, such contributions and their
she did not attend the ceremony and that she corresponding shares including joint deposits of money and
only signed it. Rosario Bayot attested that on the evidences of credit are equal.
day of the marriage, the plaintiff never left her
company. Pacita Ballori attested otherwise. Apart
Trinidad vs. CA, Trinidad and Trinidad
from that, several letters from the plaintiff for the
Facts: Arturio Trinidad, was the son of Inocentes
defendant prove that plaintiff indeed intended to
Trinidad and nephew of Lourdes and Felix
marry the defendant.
Trinidad. The three siblings, Inocentes, Lourdes
Held: The documents signed were sufficient to
and Felix, inherited a piece of land from their
prove that what took place before the Justice of
father, Patricio Trinidad. Defendants claimed that
Peace was legal and the ceremony amounted to a
the land in question has been in their possession
wedding.
since the death of their father and that Inocentes
died in 1941 and not in 1944 as alleged by
Melecio Madridejo vs. Gonzalo de Leon
Arturio. They also contend that Inocentes never
Facts: Eulogio de Leon and Flaviana Perez had
fathered a child nor was he ever married. Arturio
one child—Domingo de Leon. In the year 1915,
on the other hand alleged that his father was
Eulogio died leaving Flaviana with Domingo.
married to Felicidad Molato, his mother. Several
Flaviana later lived with Pedro Madridejo and bore
witnesses living within the neighborhood testified
a child—Melecio. On June 8, 1920, Flaviana,
to the marriage and the birth of Arturio and that
knowing that she will die soon, married Pedro.
Arturio contrary to the claims of Lourdes and Felix
She died the following day. Melecio Madridejo
had lived in their house for some time. Relevant
claimed that he is the next of kin of Domingo de
public documents valuable as evidence were
Leon who died as well. Defendant claimed that
destroyed during the war.
the wedding of Pedro and Flaviana was not valid
Held: Marriage may be proven by relevant
because the solemnizing officer failed to send a
evidences such as: testimony of a witness to the
copy of the marriage certificate to the Municipal
matrimony, public and open cohabitation, birth
Secretary. Also, Melecio Madridejo was allegedly
and baptismal certificate signed by the couple or
not a legitimate child.
a mention of the marriage in other public
Held: Forwarding of the marriage certificate is not
documents. Two witnesses attested that the
an essential requisite of the marriage. Failure to
couple cohabited and that Arturio was their son.
do so does not invalidate the marriage. For a
As proof of filiation with Felix and Lourdes, two
subsequent marriage to effectively legitimate a
family pictures were shown where Arturio was in
child born out of wedlock, the child must be
the company of Lourdes and Felix and the
acknowledged by the parents in some public
witnesses likewise attested that Arturio had lived
document or be in the uninterrupted possession
with his aunt and uncle. The preponderance of
of the status of a natural child. In the case at
evidence supported the claims of Arturio.
hand, Melecio Madridejo was not legitimated. No
public document to that effect exists and he was
Vda. De Jacob vs. CA and Pilapil
not able to prove that he has been in an
Facts: Plaintiff claimed to be the surviving spouse
uninterrupted status of the natural child.
of Dr. Alfredo E. Jacob and appointed special
 Presumption of Marriage administratix for his estates by virtue of a
reconstructed marriage contract recognized by
CC Article 220: In case of doubt, all presumptions favor the their solemnizing officer who admitted that he
solidarity of the family. Thus, every intendment of law or facts lost the marriage contract earlier on. The court of
leans toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of children, the community of
appeals ruled against the plaintiff on the grounds
property during marriage, the authority of parents over their that no copy of the contract was sent and no
children, and the validity of defense for any member of the record of the marriage existed and that Dr.
family in case of unlawful aggression. Alfredo signed the contract with his thumbmark
RC Section 3 Rule 131: That persons acting as copartners and not with his own name. Lastly, court of
have entered into a contract of copartneship;
appeals stated that the reconstructed marriage
1. That a man and woman deporting themselves as husband contract was signed by Benjamin Molina and not
and wife have entered into a lawful contract of marriage; by Jose Centera who the plaintiff said allegedly
lost the marriage contract.
2. That property acquired by a man and a woman who is Held: Dr. Alfredo and Plaintiff Tomasa had lived
capacitated to marry each other and who live exclusively with
together for over five years and the deceased
each other as husband and wife without the benefit of
marriage or under void marriage, has been obtained by their signed an affidavit to that effect. According to
joint efforts, work or industry. Article 76 of the Civil Code, no marriage license
15
shall be necessary when a man and a woman
who have reached the age of majority have lived
together as husband and wife for at least five
years. Also, failure to send a copy of the marriage
certificate for record purposes does not invalidate
the marriage. It was not the petitioner’s duty to
ensure that the copy reached the civil registrar’s
office. Secondary evidence proved that there was
a ceremony. The solemnizing officer and Adela
Pilapil attested to that effect. Also the name of
the couple was recorded in the Book of
marriages.
- In the absence of a marriage contract, there should be proof
of due execution which can be given by witnesses and proof
of loss of marriage certificate before the reconstructed
certificate may be admitted
Void Marriages
FC Article 4: The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35.
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites of shall not affect the
validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.
FC Article 35: The following marriages shall be void from the
beginning:
1. Those contracted by any party below eighteen years
of age, even with the consent of parents or
guardians;
2. Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both parties
believing in good faith that the solemnizing officer
had the legal authority to do so;
3. Those solemnized without a license, except those
covered by the preceding chapter;
4. Those bigamous or polygamous marriages not falling
under Article 41;
5. Those contracted through mistake of one contracting
party as to the identity of the other;
6. Those subsequent marriages that are void under
Article 53.
- In ordinary contracts (1) the child will not be
emancipated from parental authority. In marriage,
the child will be emancipated.
- If it is a mistake of fact, the marriage is valid. If it is
a mistake of law, the marriage is void.
- Paragraph 5 refers to physical mistake in identity.
Other fraudulent misrepresentation would not apply.
FC Article 36: A marriage contracted by any party who, at
the time of the celebration was psychologically incapacitated
to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes
manifest only after solemnization.
-Psychological incapacity to comply is different from inability
to understand because the latter is a vice of consent, without
which, an essential requisite of marriage is lacking.
Reasons for adopting psychological incapacity as a ground for
declaration of nullity:
- Substitute for divorce
- Solution of church-annulled marriages
- To give remedy to the parties imprisoned by
marriage.
16
Psychological incapacity vs. Vice of consent
- a person may fully agree but may not understand
the obligations of marriage.
- Psychological incapacity is not a vice of consent but
there is a lack of legal capacity, an essential requisite
of marriage.
Psychological Incapacity vs. Insanity
- Insanity has varying degree;
- Insanity is curable
- There are lucid intervals in insanity
- Insanity is a ground for annulment in other countries
Note: Psychological incapacity was not defined using
examples to avoid ejusdem generis (exclusive enumeration)
which might limit the applicability of the provision. It is
therefore judged according to the facts of the case.
- Psychological incapacity should exist at the time of
the marriage.
- Psychological incapacity is restricted to disorders
demonstrative of the utter sensitivity or inability to
give meaning and significance to the marriage.
Examples of psychological incapacity:
1. Homosexuality;
2. Satryiasis or Nymphomania;
3. Epilepsy with permanently recurring maladaptive
manifestationsl
4. Extremely low intelligencel
5. Habitual Alcoholism;
6. Criminality
Manifestations of psychological incapacity:
- Refusal of wife to dwell with the husband after
marriage;
- Affliction which makes common life unbearable;
- Sociopathic anomalies on husband’s part
Santos vs. Bedia-Santos
Facts: Louel Santos who was married to Julia
Bedia-Santos wishes to annul his marriage based
on Article 36 of the Family Code. Respondent has,
for the last seven years since filing for the
annulment, resided in the United States and has
contacted the petitioner only twice.
Held: Psychological incapacity refers to the
mental, not physical incapacity. It must be
characterized by gravity, juridical
antecedence and incurability for it to be
considered a psychological incapacity.
Psychological incapacity is not a vice of consent.
A person may have given his or her consent
freely without understanding the obligations of
the contract. Without consent, a marriage is void
ab initio. Without the ability to understand the
nature of the contract, the marriage is merely
voidable.
Republic of the Philippines vs. Molina
Facts: Respondent alleged that her husband
Reynaldo Molina was psychologically
incapacitated because he showed signs of
immaturity, irresponsibility and dependence. She
also averred that her husband was never honest.
The Court of Appeals and Regional Trial Court
upheld that the marriage was indeed, void.
Held: Psychological incapacity should refer to a
mental and not physical incapacity. It is confined
to the most serious personality disorders clearly
demonstrative of an utter insensitivity or inability
to give meaning and significance to the marriage.
It is not enough that the parties failed to meet
their responsibilities. It is essential that they must
be shown as incapable of doing so.
Molina Guidelines in Applying Article 36
1. The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should
be resolved in favor of the existence and
continuation of the marriage and against its
dissolution and nullity.
2. The root cause of the psychological incapacity must
be (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by the experts
and (d) clearly explained in the decision. The person
alleged to be incapacitated must be psychologically ill
to the extent that the person could not have known
the obligations he was assuming or knowing them
could not have given a valid assumption thereof.
3. The incapacity must be proven to be existing at the
time of the celebration of the marriage. The evidence
must show that the illness was existing when the
parties exchanged vows.
4. Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability
may be absolute or relative only in regard to the
other spouse. Such incapacity must also be relevant
to the assumption of marriage obligations.
5. Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage. The illness must be shown
as downright inability or incapacity.
6. The essential marital obligations are:
a. The husband and wife are obligated to live
together, observe mutual love, respect and
fidelity, and render mutual help and support
(FC Article 68).
b. The husband and wife shall fix the family
domicile. In case of disagreement, the court
shall decide. The court may exempt one
spouse from living with the other if the
latter should live abroad or there are other
valid and compelling reasons for the
exemption. However, such exemption shall
not apply if the same is not compatible with
the solidarity of the family (FC Article 69).
c. The spouses are jointly responsible for the
support of the family. The expenses for such
support and other conjugal obligations shall
be paid from the community property and in
the absence thereof, from the income or
fruits of their separate properties. In case of
insufficiency or absence of said income or
fruits, such obligations shall be satisfied
from their separate properties (FC Article
70).
d. The management of the household shall be
the right and duty of both spouses. The
expenses for such management shall be
paid in accordance with the provisions of
Article 70 (FC Article 71).
7. Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should
be given great respect by our courts.
17

Apiag vs. Cantero
Facts: Maria Apiag filed an administrative case
against her husband, respondent judge,
Esmeraldo G. Cantero. The Court of Appeals
decided that the respondent acted in grave
misconduct. The plaintiff and respondent were
married and petitioner bore 2 children by that
marriage. After the second child was born,
respondent judge left for no reason. Plaintiffs,
through their counsel asked respondent for
support and for the children to be declared legal
heirs. Complainants subsequently learned that
respondent has contracted another marriage with
whom he had 5 children. Respondent
misrepresented himself in his declaration of
assets and liabilities by putting the name of the
second wife on the said statement. He contended
that the first marriage was void ab initio because
he and his first wife never cohabited and he was
forced into the marriage. He added that he and
the petitioners have settled amicably and he has
agreed to give the children ¼ of his retirement
benefits.
Held: While he did not act in grave misconduct,
he acted in impropriety when he failed and
refused to attend to the needs of his children.
Although it is undisputed that the judge did not
obtain a judicial declaration of nullity of his first
marriage, pursuant to the jurisprudence
prevailing at the time of the second marriage, it
has been established that no such declaration
was necessary.
Choa vs. Choa
Facts: Respondent Alfonso Choa filed a complaint
for the annulment of his marriage to petitioner
Leni Choa on the grounds of psychological
incapacity. Petitioner filed a demurrer of evidence
(an objection or exception by one of the parties in
an action at law to the effect that the evidence
which the adversary produced is insufficient in
point of law to make out a case and sustain the
issue). The demurrer of evidence was dismissed
by the appellate court which upheld that the
claims of Alfonso Choa—that her wife had filed
several lawsuits against him indicating
psychological incapacity and that his wife was
immature, carefree and had no intentions of
procreative sexuality—as sufficient evidence.
Held: Psychological incapacity must be
characterized by gravity, juridical antecedence
and incurability. The testimony of the expert
doctor and the respondent only showed that the
two cannot get along with each other.
Tsoi vs. CA
Facts: Respondent Gina Lao Tsoi filed for
annulment of her marriage to petitioner Chi Ming
Tsoi on the ground of psychological incapacity.
Respondent alleged that since their marriage in
May 22, 1988 until March 15, 1989, the couple
has not consummated their marriage. Defendant
contended that it was the wife’s fault that their
marriage was not consummated. A physician
examined both plaintiff and defendant and
attested that neither of them had any physical
problem. Defendant alleged that the wife was
afraid to consummate the marriage and afraid
that she would have to return the jewelry given to
her.
Held: Whether or not it was the husband who
refused to consummate the marriage is
immaterial. The fact still stands that it has not
been consummated. There may be physical and
not psychological reasons as to why the marriage
should not be annulled but the evidence to that
effect was not presented. Catholic marriage
tribunals attribute the causes to psychological
incapacity than stubborn refusal. The natural
order between spouses is sexual intimacy.
Antonio vs. Reyes
Facts: Petitioner filed a petition for the
declaration of his marriage to respondent as null
and void on the grounds of psychological
incapacity as manifested by several instances of
lying and concealment of an illegitimate child by
Respondent Ivonne Reyes. Petitioner alleged that
respondent fabricated stories which bordered on
the ridiculous.
Held: Marriage was void by virtue of the Molina
guidelines, fulfilled by the Petitioner.
FC Article 37: Marriages between the following are
incestuous and void from the beginning, whether the
relationship between the parties is legitimate or illegitimate.
1. Between ascendants and descendants of any degree
and
2. Between brothers and sisters, whether of full or half
blood.
FC Article 38: The following marriages shall be void from the
beginning for reasons of public policy:
1. Between collateral blood relatives, whether
legitimate or illegitimate, up to the fourth civil
degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent
and the adopted child;
6. Between the surviving spouse of the adopted child
and the adopter;
7. Between an adopted child and a legitimate child of
the adopter;
8. Between adopted children of the same adopter; and
9. Between parties where one, with the intention to
marry the other, killed that other person’s spouse or
his or her own spouse.
FC Article 39: The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. However, in
the case of marriages celebrated before the effectivity of this
18
code and falling under Article 36, such action or defense shall
prescribe in ten years after this code shall have taken effect.
FC Article 40: The absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void.
- Final judgment is needed to avoid confusion because one of
the parties may contract another marriage which would be
bigamous and therefore void during the pendency of the trial
for the other marriage.
FC Article 41: A marriage contracted by any person during
the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four* consecutive years and
the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under
the preceding paragraph, the spouse present must institute a
summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
FC Article 44: If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by
operation of law.
RA 8533
CC Article 390: After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of
succession. The absentee shall not be presumed dead for the
purposes of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years,
an absence of five years shall be sufficient in order that his
succession may be open.
CC Article 391: The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs;
1. A person on board a vessel lost during sea voyage,
or an airplane which is missing, who has not been
heard of for four years since the loss of the vessel or
airplane;
2. A person in the armed forces who has taken part in
war, and has been missing for four years;
3. A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
People vs. Mendoza
Facts: Appellant was married to Jovita de Asis on
August 5, 1936. On May 14, 1941, appellant
married Olga Lema. On February 2, 1943, the first
wife of appellant died. On August 19, 1949,
appellant married one Carmencita Panlilio.
Appellant was then charged with bigamy but he
contended that his marriage to Olga Lema was
void ab initio and therefore non-existent. In that
light, he claimed, that his marriage to Carmencita
was not bigamous.
Held: The marriage law in effect at the time the
appellant contracted with his second wife, Olga
Lema, states that his marriage to Lema was void
ab initio. No judicial decree was necessary to
establish its invalidity.
Tolentino vs. Paras
Facts: Serafia Tolentino was the wife of the
deceased, Amado Tolentino. Petitioner requested
the correction of an entry on the death certificate
of the deceased which states that the name of his
surviving spouse was Maria Clemente. Amado
Tolentino married his second wife, Maria
Clemente while his first marriage was still in
effect. When the deceased was charged with
bigamy, he pleaded guilty and served the
corresponding sentene. The petition was
dismissed by Hon. Edgardo Paras on grounds that
the issue was a marital relationship, and that the
court has no jurisdiction.
Held: The petition was meritorious. The court had
jurisdiction because the wife was, initially,
seeking a judicial declaration that she was the
lawful spouse of the deceased. The plea of guilt
of the deceased effectively established that the
second marriage was in fact, void ab initio and
that the petitioner was the lawful spouse.
Wiegel vs. Sempio-Diy
Lilia Wiegel appealed for the reversal of the
decision of respondent judge, Sempio-Diy
because, in the petition for the declaration of
nullity of marriage filed by Karl Heinz Wiegel
against petitioner, respondent judge ruled against
the presentation of evidence. When petitioner
was married to the plaintiff, she had a previous
existing marriage. Petitioner claimed that the first
marriage was void ab initio because she was
forced into marrying her first husband.
Held: There was no need to present evidence
because if there had been, in fact, intimidation
during the first marriage, the said marriage would
have been rendered voidable and not void. Had
the marriage been void, a judicial declaration
would still be necessary.
Terre vs. Terre
Facts: Petitioner charged Atty Jordan Terre with
gross immoral conduct for contracting a second
marriage while he has a subsisting marriage. The
petitioner alleged that while she was still in her
previous marriage with her first cousin, she was
courted by defendant and was advised that she
was free to contract a second marriage because
her first marriage was void. Petitioner took the
advise and married herein respondent but, after a
few years, the respondent took off. Later the
petitioner found out that respondent had
contracted another marriage.
Held: A judicial declaration is necessary to
determine whether a person is legally free to
contract a second marriage. Without such
19
declaration, the subsequently existing marriage is
sustained.
Atienza vs. Brillantes
Facts: Complainant charged respondent Judge
Fransisco Brillantes with gross immoral conduct
after having found said respondent sleeping in his
own bed, apparently cohabiting with his wife.
Complainant left his wife and kids. Complainant
alleged that the said judge was, at that time,
married to one Zenaida Ongkiko with whom he
had 5 children. Respondent denied the allegation
saying that his marriage with Ongkiko was void
ab initio because it was solemnized without a
marriage license. Respondent likewise argued
that Article 40 of the family code was not in effect
when his first marriage took place.
Held: Judicial declaration of nullity of a previous
marriage is needed for purposes of remarriage.
The Family Code can be applied retroactively so
long as vested rights will not be impaired by its
application.
Borja-Manzano vs. Sanchez
Facts: Complainant avers that she is the lawful
wife of the late David Manzano. Her husband
contracted another marriage while the first one
was still in effect, solemnized by herein
respondent judge. Respondent contends that he
did not know that the two were only legally
separated and that all he knew was the two had
been cohabiting for seven years. He cited Article
34 which states that no license shall be necessary
for the marriage of a man and a woman who have
lived together as husband and wife for at least 5
years.
Held: The requisite of Article 34 is that there is no
legal impediment between the parties. The said
article is merely a ground for exemption for
marriage license. The judge knew of the
subsisting marriage as it was stated in the
marriage certificate and in the affidavit signed by
the parties.
Domingo vs. Court of Appeals
Facts: Delia Soledad Domingo sought the judicial
declaration of nullity of marriage and separation
of property against petitioner Roberto Domingo
on the grounds that the petitioner had a valid and
existing marriage with one Emerlinda dela Paz.
The first wife sued petitioner for bigamy.
Respondent claimed that the petitioner has been
dependent on her and since she left to work in
Saudi, she has amassed some P350,000 worth of
properties which were under the possession and
administration of herein petitioner until
respondent found out about the first marriage.
Petitioner alleged that there was no cause for
action because the marriage was void ab initio
and judicial declaration of nullity of marriage is
only sought for purposes of remarrying and no
such intention has been expressed.
Held: Although it is stated in the Family Code that
judicial declaration is needed for purposes of
remarrying, it does not expressly state that it is
exclusive for that purpose alone. The Family Code
provides that among the effects of the judicial
declaration is the immediate separation of
property.
 Effects of Nullity
FC Article 50: The effects provided for by paragraphs 2, 3, 4,
and 5 of Article 43 and Article 44 shall also apply in the
proper cases to marriages which are declared void ab initio or
annulled by final judgment under Article 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses and the custody and support of the common children,
and the delivery of the presumptive legitimes, unless such
matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified for
the proceedings for liquidation.
In the partition, the conjugal dwelling and the log on which it
is situated shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
FC Article 51: In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of
final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such
matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
the children accruing upon the death of either or both of the
parents but the value of the properties already received under
the decree of annulment or absolute nullity shall be
considered as advances on their legitimes.
FC Article 52: The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the children’s
presumptive legitimes shall be recoded in the appropriate civil
registry and registries of property; otherwise, the same shall
not affect the third persons.
FC Article 53: Either of the former spouses may marry again
after compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall
be null and void.
FC Article 54: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory shall be
consicered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.
Ninal vs. Bayadog
Facts: Petitioners request the annulment of the
marriage of their father to Norma Bayadog. On
September 26, 1974, Pepito married Teodulfa.
Teodulfa died on April 24, 2985 and, on
20
December 11, 1986, Pepito married Norma
Bayadog. The marriage was contracted without a
license. Instead, the couple signed an affidavit
stating that they had been cohabiting as husband
and wife for 5 years. The code in effect during the
time of the marriage was the Civil Code.
According to Article 76 of the said code, marriage
between a man and a woman who have been
living together for more than 5 years no longer
requires a marriage license. Pepito died in
February of 1997.
Held: Marriage of Pepito Ninal Sr. and Norma
Bayadog is null and void. It is evident that only 20
months elapsed between the time of the death of
the first wife and the marriage with the second
wife. Had the two been cohabiting for five years,
such cohabitation, and the marriage, was not
within the capacity of the deceased. The children
do not have standing to cause action but,
because the marriage was null and void, it is
likewise non-existent.
- For marriages of exceptional character, there should be no
legal impediment on the part of either party. The one
contracting a marriage should have legal capacity to do so.
Voidable Marriages
 Grounds for Annulment
FC Article 45: A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
1. That the party in whose behalf it is sought to have
marriage annulled was eighteen years of age or over
but below twenty-one, and the marriage was
solemnized without the consent of the parents,
guardian or person having substitute parental
authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as
husband and wife;
2. That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with
the other as husband and wife;
3. That the consent of either party was obtained by
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
4. That the consent of either party was obtained by
force, intimidation or undue influence, unless the
same having disappeared or ceased, such party
thereafter freely cohabited with the other as husband
and wife;
5. That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable;
6. That either party was afflicted with a sexually-
transmitted disease found to be serious and appears
to be incurable.
Annulment and Legal Separation:
- Annulment is caused by some circumstance existing
at the time of the marriage while legal separation
arises after the celebration of the marriage;
- Annulment of marriage terminates the marital bond
between the parties while legal separation does not;
- Annulment of marriage once final, cannot be set
aside so as to restore the marital relation while legal
separation may be terminated and marital relations
resumed by the reconciliation of the parties.
The presumption of the law is generally in favor of sanity
and he who alleges the insanity of another has the
burden of proving it. Once general insanity is proved to
exist, it is presumed to continue; and if a recovery or a
lucid interval is alleged, the burden to prove such is on
the person making it.
A marriage may be annulled where one of the parties was
so intoxicated he or she had no mental capacity to give
valid assent.
21

For physical incapacity, impotence or sexually
transmitted disease to be a ground for annulment the
following must concur:
1. That it exists at the time of the celebration of the
marriage;
2. That it continues to the time when the case for
annulment is being tried;
3. That it appears to be incurable,
4. That the other contracting party is aware of it.
- In impotence, the person cannot have sex. In sterility, the
person cannot procreate.
- Impotence is not a ground for declaration of nullity because
the injured spouse may accept the impotence of his or her
spouse.
FC Article 46: The following shall constitute fraud:
1. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude;
2. Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other
than her husband;
3. Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage;
4. Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism existing at the time
of the marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will
give grounds for action for the annulment of marriage.
-A marriage cannot be annulled simply on the ground that the
wife concealed the fact that she had been lewd and corrupt
and had an illegitimate child prior to the marriage.
FC Article 48: In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the
prosecution attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or
suppressed.
RPC Article 344: The crimes of adultery and concubinage
shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both
alive, nor in any case, if he shall have consented or pardoned
the offenders.
Force- Physical injury, violence, irresistible intimidation or
threat
Undue influence- a person who takes improper use of his
power
- The person who can ratify is the injured party;
- The injured party can file for annulment within five
years
- If the injured party freely cohabited after the
cessation of the ground for annulment (except in
impotence and sexually transmitted diseases), he is
estopped from annulling the marriage.
RATIFICATION cures the defect of the marriage and it
retroacts to the day of the marriage or the day of giving
consent.
Katipunan vs. Tenorio
Facts: Plaintiff Marcos Katipunan brought action
against Rita Tenorio seeking the annulment of
their marriage. He alleged that the defendant was
not of sound mind at the time they contracted
marriage. According to the guardian of the
defendant, Tenorio only suffered ailment after
giving birth to her 4th child.
Held: The couple cohabited for seven years and
plaintiff admitted that there had been lucid
intervals therefore, the marriage cannot be
annulled. Insanity has to be a permanent
condition. If at the time of the celebration of the
marriage there was nothing wrong with the
mental health of the other spouse, marriage
cannot be annulled.
Aquino vs. Delizo
Facts: Petitioner requests the annulment of her
marriage on the ground of fraud, claiming that his
wife was 4 months pregnant at the time that they
were married and the child was that of another
man. The appellate court dismissed the petition
on the grounds that it was unbelievable that the
petitioner was unable to tell if his wife was
pregnant.
Held: Petition must be granted because
pregnancy is hardly noticeable at five months and
the wife was plump.
Anaya vs. Palaroan
Facts: Defendant Fernando filed an action for
annulment on grounds that his consent to the
marriage was obtained through force and
intimidation. The complaint was dismissed.
Herein petitioner then sought the annulment of
her marriage to Fernando on the grounds of
fraud, saying that her husband concealed the fact
that he had marital relations with another woman
prior to the marriage.
Held: Concealment of premarital relations was
not among the kinds of fraud stated in the Civil
Code (Family Code). The pertinent provision is not
subject to interpretation as it was also expressly
stated that “no other misrepresentation or deceit
shall constitute fraud.”
Ruiz vs. Atienzs
Acts: Plaintiff requests the annulment of her
marriage on the ground that his consent was
given under duress. His wife, whom he had
premarital relations, bore a child. When the child
was born, the father of his wife allegedly
approached him with a knife and in the company
of a lawyer. The lawyer threatened his entrance
to the bar.
Held: Petition cannot be granted because the
petitioner had several chances of escape before
the marriage and because his wife bore his own
child. Where a man marries under threat of or
constrain from lawful prosecution for seduction or
bastardy, he cannot avoid marriage on the
ground of duress. Proof of bodily harm must be
22
sufficiently shown. Threat to obstruct admission
to the bar does not constitute duress. Only if the
threat is so grave that the person is not acting in
his own freewill that a marriage becomes void.
RELUCTANCE vs. VITIATION
- In reluctance, the person consents to the marriage
but gives it anyway.
- In vitiation, there is an actual, external force
Jimenez vs. Canizares
Facts: Petitioner filed an action to annul his
marriage to respondent on the ground that the
orifice of the vagina of his wife was too small to
allow penetration. For that reason, petitioner has
left the conjugal abode. The defendant failed to
comply with the order of medical examination
and so, the lower court granted the annulment.
Held: Presumption will always be in favor of
potency. It is understandable that a woman would
refuse to subject herself to physical examination.
The testimony of one party is not sufficient to
annul the marriage because to do so will open the
court to cases of collusion between the spouses
for the annulment of their marriage.
Sarao vs. Guevara
Facts: On the day of the marriage of the plaintiff
and the defendant, the marriage was not
consummated because the defendant complained
of pains. The defendant was operated on and her
uterus and ovaries were surgically removed. The
removal rendered the defendant incapable of
procreation as such, plaintiff wants his marriage
with the respondent annulled.
Held: Impotency is not inability to procreate but
inability to copulate. Inability to copulate cannot
be a ground for annulment and a temporary or
occasional incapacity cannot be used as a ground
to nullify a marriage.
People vs. Santiago
Suntay vs. Cojuangc-Suntay
Facts: Petitioner opposed the petition filed by
respondent for the issuance of letters of
administration (of the estate of her paternal
grandmother) in her favor on the grounds that he
was the surviving spouse of the deceased, and
that the petitioner and the deceased have been
alienated from the family of the respondent. He
likewise alleged that respondent was not a
legitimate child because the marriage of her
parents, Emilio Aguinaldo Suntan (son of
petitioner) and Isabenl Cojuangco-Suntay was
declared null and void because Emilio was found
to be schizophrenic at the time of his marriage.
Held: A child born out of a voidable marriage
before the decree of annulment is considered a
legitimate child.
- Void marriages are deemed never to have taken
place at all but the children born of that marriage
who are called natural children by legal fiction have
the same status, rights and obligations as
acknowledged children.
- Voidable marriages are considered valid and
produces all it civil effects until it is set aside by final
judgment of a competent court in an action for
annulment. The annulment fo the marriage dissolves
the special contract but the effects of the marriage
will not be wiped out completely. Children born of
voidable marriages shall be considered legitimate.
- To annul means to reduce to nothing. Null and void
means something does not exist from the beginning.
 Marriage when one spouse is absent
CC Article 83: A marriage subsequently contracted by any
person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal
and void from its performance unless:
1. The first marriage was annulled or dissolved;
2. The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee though he
has been absent for less than seven years, is
generally considered as dead and believed to be so
by the spouse present at the time of contracting
such subsequent marriage, or if the absentee is
presumed dead according to articles 390 and 391.
The marriage so contracted shall be valid in any of
the three cases until declared null and void by a
competent court.
CC Article 85: A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(2) In a subsequent marriage under article 83, number 2,
that the former husband or wife is believed to be dead was in
fact living and the marriage with such former husband or wife
was then still in force.
Jones vs. Hortiguela
Facts: Petitioner requests that she be declared
the sole heir of the intestate estate of Marciana
Escano, her mother. Prior to the motion, at the
time when petitioner was still a minor,
respondent was awarded a fixed rate of P10,000
for the administration of the estate of the
deceased. Petitioner alleged that when her
mother remarried in May 1927, the judicial
declaration of the absence of her father was not
yet effective. As such, the marriage of the
deceased and the respondent was null and void.
Held: Petition denied. Absence of one spouse
shall be counted from the last day of
communication or from the reception of the last
news regarding the absent spouse. In this case,
the first spouse was absent for 9 years.
 Effects of pending action or decree
FC Article 49: During the pendency of the action and in the
absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support
of the spouses and the custody and support of their common
children. The Court shall give paramount consideration to the
moral and material welfare of said children and their choice of
parent with whom they wish to remain as provided for in Title
23
IX. It shall also provide for appropriate visitation rights for the filed against the motion for declaration of nullity
other parent. filed by private respondent. Private respondent
FC Article 50: The effects provided for by paragraphs (2),
alleged that the marriage of the Petitioner to her
(3), (4), (5) of the Article 43 and by Article 44 shall also apply husband must be declared null and void on the
in the proper cases to marriages which are declared void ab ground of bigamy. At the time of the marriage of
initio or annulled by final judgment under Articles 40 and 45. petitioner and her deceased husband, private
The final judgment in such cases shall provide for the respondent was still also married with him.
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children and
Petitioner contended that the Regional Trial Court
the delivery of their presumptive legitimes unless such had no jurisdiction because both the petitioner
matters had been adjudicated in previous judicial and the deceased were Muslims.
proceedings. Held: Under the Judiciary Reorganization Act of
All creditors of the spouses as well as of the absolute 1980, Regional Trial Courts have jurisdiction over
community or the conjugal partnership shall be notified of the
all actions involving the contract of marriage and
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it marital relations. In this case, both the petitioner
is situated shall be adjudicated in accordance with Articles and the deceased were married through a civil
102 and 129. wedding and whether or not they were likewise
married in a Muslim wedding, shari’a courts are
FC Article 51: In said partition, the value of the presumptive
still not vested with original and exclusive
legitimes of all common children, computed as of the date of
the final judgment of the trial court shall be delivered in cash, jurisdiction over marriages married under civil
property or sound securities, unless the parties, by mutual and Muslim laws.
agreement judicially approved, had already provided for such
matters.
The children or their guardian or the trustee of their property
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
the children accruing upon the death of either or both of the
parents; but the value of the properties already received
under the decree of annulment or absolute nullity shall be
considered as advances on their legitimes.

FC Article 52: The judgment of annulment or of absolute

nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the children’s
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons.

FC Article 53: Either of the former spouses may marry again

after compliance with the requirements. Subsequent marriage
shall be null and void.

FC Article 54: Children conceived or born before the

judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.

CC Article 371: In case of annulment of marriage, and the

wife is the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may continue
employing her former husband’s surname, unless:
1. The court decrees otherwise;
2. She or the former husband is married again to
another person.

CC Article 369: Children conceived before the decree

annulling a voidable marriage shall principally use the
surname of the father.

 Jurisdiction

Estrellita J. Tamano vs. Hon. Rodolfo Ortiz

Facts: Petitioner assailed the decision of a lower
court which rejected the motion to dismiss she

24

LEGAL SEPARATION
 Grounds
FC Article 55: A petition for legal separation may be filed on
any of the following grounds:
1. Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
3. Attempt of respondent to corrupt or induce
petitioner, a common child, or a child of the
petitioner to engage in prostitution, or connivance in
such corruption or inducement;
4. Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
5. Drug addiction or habitual alcoholism of the
respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting of respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt of the respondent on the life of the
petitioner;
10. Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term “child” shall include
a child by nature or by adoption.
Violence- must be of a serious degree but does not have
to amount to an attempt against the life of the defendant
- The violence must be repeated, to the extent
that common life with defendant becomes
extremely difficult for the plaintiff.
- Physical violence or moral pressure to compel
the plaintiff to change religious or political
affiliation need not be repeated. There must
be some element of coercion present, whether
physical or moral.
- The guilt for the corruption or inducement to
prostitution must be on only one spouse.
- The crime for which a spouse may have been
convicted may have no bearing at all on the
relationship of the husband and wife.
- If drug addiction, habitual alcoholism,
lesbianism or homosexuality existed at the
time of marriage but were unknown to the
other party, they would constitute a ground
for annulment of marriage as fraud. If they
come to exist after the celebration of the
marriage, they become grounds for legal
separation.
- Every subsequent marriage, where there is a
subsisting prior marriage, should give the
other spouse the right to ask for legal
separation. This is so because the spouse who
has remarried has cohabited with another
person.
- Under the Family Code, every act of sexual
infidelity by either husband or wife is a ground
for legal separation.
- Sexual perversion as a ground for legal
separation includes all unusual or abnormal
sexual practices which may be offensive to the
feelings or sense of decency of either husband
or wife. There must also be an element of
coercion exercised by the defendant to make
the plaintiff submit to the act.
- There is abandonment when one spouse
leaves the other without intent to return.
- Attempt on the life must imply that there is
intent to kill
- Under Article 101 of the Family Code, “the
spouse who has left the conjugal dwelling for
a period of three months or has failed within
the same period to give any information as to
his or her whereabouts, shall be prima facie
presumed to have no intention of returning to
the conjugal dwelling.”
CC Article 97: A petition for legal separation may be filed:
1. For adultery on the part of the wife and for
concubinage on the part of the husband as defined in
the Penal Code; or
2. An attempt by one spouse against the life of the
other.
Adultery- The act of a wife having sexual intercourse with any
other man not her husband will constitute adultery.
Concubinage- The act of the husband having sexual
intercourse with his wife shall constitute concubinage if:
1. He maintains a mistress in the conjugal dwelling;
2. there is sexual intercourse with the other woman
under scandalous circumstances;
3. the husband cohabits with another woman other
than his wife in any other place.
Cohabit- to dwell or live together in the same house as
husband and wife.
Legal Separation vs. Separation of Property
- In legal separation, there is a suspension of
the common marital life, both as to person
and property.
- In separation of property, only the property
relation is affected and the spouses may
continue living together.
- Separation of property can be effected by
agreement of the spouses, subject to judicial
approval; but a decree of legal separation
cannot be rendered upon agreement of the
parties.
25

Legal Separation vs. Separation of Spouses
- Legal separation can be effected only by
decree of the court; but the spouses may be
separated in fact without any judgment of the
court.
People vs. Zapata and Bondoc
Facts: Petitioner husband Andres Bondoc filed a
complaint of adultery against his wife, Guadalupe
Zapata and her paramour, Dalmacio Bondoc. The
two respondents cohabited and had repeated
sexual intercourse from 1946 to March 1947. The
defendant wife entered a plea of guilty and was
sentenced to suffer four months in prison.
Respondent Dalmacio Bondoc on the other hand,
claimed that he did not know that Guadalupe
Zapata was married. On September 1948,
petitioner once again filed a complaint of adultery
for acts committed from March 1947 to
September 1948. Defendant then filed a motion
to quash on the ground that they will be twice put
in jeopardy. The motion was granted by the lower
court on the ground that adulterous acts must be
considered as a continuing offense.
Held: The court held that adultery as a crime of
result and not of tendency, is consummated at
the moment of carnal union. Continuous crimes
exist if there is a plurality of acts performed
separately during a period of rime, unity of penal
provisions violated and unity of criminal intent or
purpose. In short, continuous crimes are aimed at
committing a single offense. In adultery, each
instance of sexual intercourse is a separate
crime. Also, the court held that there is no legal
provision which bars the filing of as many
complaints for adultery as there were adulterous
acts committed.
Munoz vs. Del Barrio
Facts: Felicidad Munoz and Jose del Barrio
quarreled frequently and on those occasions,
petitioner complained that the husband
maltreated her. In 1947, they separated but on
December 1950 and September 1951, the
husband once again maltreated petitioner,
prompting her to institute an action for legal
separation on the ground of attempt to life.
Petitioner requested that she be given custody of
her children, that whatever will remain of the
conjugal property be divided, and the conjugal
partnership be dissolved.
Held: The Supreme Court affirmed the decision of
the lower court. It held that the alleged
maltreatment cannot constitute an attempt to life
because such has to be characterized by intent to
kill which was not sufficiently proven especially
since the respondent only used his bare hands.
Intent to kill, the court said, must be established
with clear and convincing evidence.
Gandionco vs. Penaranda
Facts: Respondent judge Hon. Senen C.
Penaranda ordered petitioner to pay for the
support of private respondent Teresita Gandionco
and his child. Private respondent filed a complaint
for legal separation against petitioner on the
ground of concubinage. Private respondent
likewise requested for support and payment of
damages. Petitioner Froilan Gandionco claims
that the civil action for legal separation and the
application for support should be suspended
because of the pending criminal case for
concubinage filed against him. His contention was
based on Article 111 Section 3 of the 1985 Rules
on Criminal Procedure which states that a
pending civil action instituted for civil liabilities
should be suspended until the criminal action
arising from the same offense is over.
Held: The court held that a civil action for legal
separation may proceed ahead of or
simultaneously with a criminal action for
concubinage because the said civil action is not
one to “enforce civil liability” but rather to obtain
the right to live separately. Petitioner’s argument
that conviction for concubinage must be secured
before an action on legal separation can prosper
lacks merit because unlike in criminal procedures,
proof of concubinage in a civil procedure is based
on preponderance of evidence and not proof
beyond reasonable doubt.
US vs. McMann
Facts: Defendant Robert McMann and one McKay
were employed at the Quartermaster’s
Department of the Army. While at the place of a
certain Moro, Amay Pindolonan asking for
matches to light a cigarette, McMann suddenly
fired at McKay. McKay was struck in the back of
the head and killed instantly. Amay Pindolonan
tried to run but McMann also shot him. Defendant
claimed that he had no intention to shoot McKay
as they were good friends and that the shooting
was merely an accident. The defendant also
claimed that he was drunk at the time of the
incident.
Held: To convict a man of the offense being a
common drunkard it is necessary to show that he
is a habitual drunkard to the point that he has a
fixed habit of drunkenness.
Lapus Sy vs. Sy Uy
Facts:A case for legal separation was filed by
Carmel Lapuz Sy against Eufemio Sy Uy on the
ground of abandonment. She prayed for the
issuance of a decree of legal separation and that
her partner be deprived of their conjugal
partnership profits. Petitioner also claimed that
respondent was cohabiting with a certain Go
Hiok. Respondent then filed a counter-dlaim for
the declaration of nullity ab initio of his marriage
26
with petitioner on the ground that he had a
subsisting marriage with Go Hiok. During the
course of the trial, petitioner died and her father,
Macario Lapuz, moved to substitute. Eufemio
moved to dismiss the substitution because the
death of the petitioner should, as he alleged,
abate the action for legal separation.
Held: The death of one of the parties to the action
abates the action itself because action for legal
separation is purely personal hence, when one of
the parties is dead, there is no longer a need for
the decree. Conjugal property are likewise not
assignable or transmissible therefore, it doesn
not warrant a continuation of the action through
substitution.
Dela Cruz vs. Dela Cruz
Facts: Estrella dela Cruz filed a complaint against
her husband alleging that the latter has
abandoned their family and has not slept or
visited the conjugal dwelling since 1955; that
defendant was mismanaging their conjugal
partnership properties and as such has abused
his powers of administration and that defendant
had a concubine named Nenita Hernandez.
Petitioner then asked for the separation of their
property, a monthly support of P2,500 during the
pendency of the action and payment of P20,000
in attorney’s fees.
Defendant contended that he did not abandon his
family and has not failed to give them a monthly
allowance of around P1,500. He stated that he is
merely separated from his wife because he
cannot concentrate on their business but he
never failed to visit his family. Petitioner allegedly
played mahjong often while respondent
consistently applied his industry so that their
business will grow.
Held: The court held that abandonment must be
real abandonment and not mere separation. It
must not only be physical estrangement.
“Abandon” in ordinary sense means to forsake
completely with intent never again to resume or
claim one’s rights or interests. There must
therefore be absolute cessation of marital
relations, duties and rights with the intention of
perpetual separation.
 Defenses
FC Article 56: The petition for legal separation shall be
denied on any of the following grounds:
1. Where the aggrieved party has condoned the offense
or act complained of;
2. Where the aggrieved party has consented to the
commission of the offense or act complained of;
3. Where there is connivance between the parties in the
commission of the offense or act constituting the
ground for legal separation;
4. Where both parties have given ground for legal
separation;
5. Where there is collusion between the parties to
obtain the decree of legal separation; or
6. Where the action is barred by prescription.
- Condonation is the forgiveness of a marital
offense constituting a ground for legal
separation, and bars the right to legal
separation. It may be expressed, in the sense
that it is in writing or implied as inferred from
the action of the injured party.
- Where a party has clear and convincing
knowledge of the offense and then
deliberately and willfully cohabits or has
sexual intercourse with the offender, he or she
thereby impliedly pardoned the offender’s act.
- Consent is agreement or conformity in
advance of the commission of the act which
would be a ground for legal separation.
- Connivance implies agreement, express or
implied, by both spouses.
- A husband who actively connives in the
adultery of his wife by procuring her to be
lured into the commission of the act will very
generally be presumed to have consented to
the adultery and will be denied legal
separation on that ground.
- A husband must not actively participate in
preparations for the suspected misconduct by
providing opportunity for the wrongdoing.
- Collusion is the agreement between husband
and wife for one of them to commit or to
appear to commit or presented in court as
having committed, a matrimonial offense, or
to suppress evidence of a valid defense, for
the purpose of enabling the other to obtain
legal separation.
People vs. Sensano and Ramos
Facts: After the birth of the first child of
complainant Mariano Ventura and respondent
Ursula Sensano, complainant left for Cagayan de
Oro. Complainant did not write, call or send
anything in form of support for three years.
Respondent then cohabited with Marcelo Ramos
with the belief that her husband will not return
again. Complainant returned and filed a
complaint of adultery against respondents. The
court held in favor of the plaintiff but opined that
the plaintiff treated his family with cruelty in
abandoning them. After sentence, accused wife
left her paramour and begged for the forgiveness
of plaintiff but she was turned away. She then
went back to Marcelo Ramos. Plaintiff then left for
Hawaii and upon his return after seven years, he
once again filed a charge of adultery.
Held: The court held that under Article 34 of the
RPC, the offended party cannot file a complaint of
adultery if he consented to it. The court was of
the belief that complainants action of turning
away the defendant constituted a consent and as
such he estopped from filing a case.
-Constructive Abandonment- The injured party
leaves the wife or the spouse refuses the re-entry
of the offending spouse.
De Ocampo vs. Florenciano
27
Facts: Petitioner Jose de Ocampo filed a
complaint of adultery against his wife but was
denied by the Court of First Instance. Through
several testimonies, it was found that in March
1951, defendant maintained illicit relations with
one Jose Arcalas. After plaintiff found out,
defendant was sent to Manila to study wherein
she had several illicit relations with other men.
On June 1955, plaintiff found his wife in the act of
sexual intercourse with one Nelson Orzame.
Plaintiff then and there told his wife of his
intention of filing for legal separation. The Court
of Appeals held that the time for filing a charge of
adultery on the first case had prescribed. Also, on
the second case, CA held that they cannot render
a decree of separation on the ground of
confession of judgment.
Held: The court held that the “confession of
judgment”--which happens when a defendant
confesses in court the right of plaintiff to his
demand, did not occur because such confession
happened outside of court. Had there been a
confession of judgment, the decree should still be
granted since there was a preponderance of
evidence as provided by the plaintiff. If the court
will not allow separation despite of the evidence,
any defendant who opposes separation will
merely confess in court.
Sargent vs. Sargent
Facts: Petitioner Donald Sargent charged his wife,
respondent Frances L. Sargent with adultery
alleging that defendant wife had illicit relations
with Charles Simmons, a black man and the
couple’s driver. Petitioner alleged that defendant
wife contracted gonorrhea from the illicit
relations. Petitioner then hired detectives to
prove the said illicit relations, and said detectives
testified along with other servants, all of whom
were employed by petitioner. The detectives in
one instance shut the door of the room of
respondent wife while respondent Charles
Simmons was inside to make it appear as though
they were having illicit relations.
Held: The court held in favor of the defendant.
The detectives surveilled Mrs. Sargent for over
seven weeks but no solid evidence of the alleged
adultery was procured. Mr. Sargent also appeared
to have connived with the detectives to show that
his wife was indeed having sexual relations.
Where the husband employs detectives to get
evidence of his wife’s adultery, but the adultery is
brought about by the detective himself, legal
separation can be denied on the ground of
connivance.
Brown vs. Yambao
Facts: William H. Brown filed an action to obtain
legal separation against his wife, Juanita Yambao.
He found out that his wife has adulterous
relations with one Carlos Feld at the time when
petitioner was interred by the Japanese invaders.
He discovered the said relation when in 1945, his
wife begot a child. A document was executed for
the liquidation of their conjugal partnership
property and as such, complainant wants
confirmation of liquidation, custody of children
and the disqualification of defendant from
succession. In the cross examination of petitioner
it was found that he was also cohabiting with
another woman and had a child with that woman.
Held: The court held that the misconduct of
petitioner barred him from obtaining legal
separation and in this case, the misconduct and
failure of the wife to institute action against
petitioner’s misconduct constituted circumstantial
evidence of collusion.
Willan vs. Willan
Facts: Husband appeals the decision by court to
deny his petition for the dissolution of his
marriage on the ground that he condoned the
cruelty of his wife. Petitioner alleged that his wife
repeatedly assaulted him, was habitually
offensive and frequently demanded to have
sexual intercourse with him. Respondent
allegedly resorted to violence and pestering,
forcing complainant to agree to sexual
intercourse. Solicitors have allegedly written the
wife regarding the matter but to no avail. The
night before leaving the conjugal dwelling,
petitioner and respondent once again had sexual
intercourse.
Held: The court held in favor of the defendant as
they found it impossible that a man may have
sexual relations and not condone the said
relations. Unwillingness, the court said, is not the
same as involuntariness.
Bugayong vs. Ginez
Facts: After their marriage, petitioner Benjamin
Bugayong and Defendant Leonila Ginez agreed
that defendant would stay with petitioner’s
sisters while petitioner worked in the United
States as a serviceman. For some time,
defendant lived with petitioner’s sisters but she
eventually left to live with her mother and then
moved to Dagupan to study. Petitioner received
letters from his sister-in-law that defendant was
having adulterous relations and petitioner alleged
that defendant herself wrote him that she was
kissed by another man. When petitioner returned,
they lived together for two nights and one day.
On the second day, when petitioner asked the
defendant if there was any truth to the
allegations of adultery, defendant did not answer
but instead, left. The petition was dismissed by
the lower court on the ground that petitioner had
condoned the said illicit relations of his wife.
28
Held: The petitioner, having slept with the
defendant for two nights, has condoned the
adulterous relations. Any cohabitation with the
guilty party, after the commission of the offense,
and with knowledge or belief is considered
conclusive evidence of condonation.
Matubis vs. Praxedes
Facts: Soccoro Matubis filed a complaint for legal
separation alleging that Zoilo Praxedes had
abandoned her and was guilty of concubinage.
According to her testimony, barely a year after
their marriage, plaintiff and defendant agreed to
live separately after failing to agree on where
they should live as husband and wife. They
entered into an agreement which stipulated the
conditions and provisions for their de facto
separation. In 1955, defendant began cohabiting
with another woman and had another child by
her.
Held: The time for instituting action has
prescribed. The stipulations in the agreement
which stated that both spouses relinquished their
rights as husband and wife, and was free to get
any mate and live with him or her as husband
and wife, constituted consent and condonation.
 When to File/ Try Actions
FC Article 57: An action for legal separation shall be filed
within five years from the time of the occurrence of the
cause.
FC Article 58: An action for legal separation shall in no case
be tried before six months shall have elapsed since the filing
of the petition.
- If the ground for legal separation is violence against women,
there should be no effort to compromise.
FC Article 59: No legal separation may be decreed unless the
Court has taken steps towards the reconciliation of the
spouses and is fully satisfied, despite such effort, that
reconciliation is highly improbable.
FC Article 60: No decree of legal separation shall be based
upon a stipulation of facts or a confession of judgment. In any
case, the Court shall order the prosecuting attorney or fiscal
assigned to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed.
Contreras vs. Macaraig
Facts: Elena Contreras appealed the decision of
the Juvenile and Domestic Relations court of
Manila which dismissed her complaint of adultery
against Cesar J. Macaraig on the ground that the
time for filing an action has prescribed. In 1961,
defendant met Lily Ann Alacala and had started
to come home late and be away often. In
September 1962, Avelino Lubos, the family
driver, told Elena that her husband was living
with Alcala. When defendant came home in
October, plaintiff did not verify the report so that
defendant will not get angry. In April 1963,
plaintiff once again heard rumors of the alleged
misconduct of her husband. It was only upon
hearing reports that Lily Ann Alcala had given
birth did plaintiff sent Mrs. Felicisima Antioquo to
investigate. The latter confirmed on October 1963
that a child had been born by Alcala, bearing the
surname of defendant. Plaintiff, through her
father and sister-in-law, tried to convince the
defendant to come back but defendant told her
that he can no longer leave Lily Ann. The lower
court held that the word “cognizant” does not
connote the date when proof was sufficient
because the time indicated by the code would
have been rendered meaningless as all one would
need to do is fix the date.
Held: The court held that plaintiff had reason not
to file an action because she had hoped that
defendant would return. The only time that
defendant therefore that plaintiff became
cognizant of the alleged infidelity of the
defendant was when the husband stated that he
was living with, and no longer be leaving, Lily Ann
Alcala.
Somosa Ramos vs. Vamenta Jr. and
Clemente Ramos
Facts: Petitioner Lucy Somosa Ramos filed a civil
case for legal separation against Clemente
Ramos on the ground of concubinage and
attempt to life. She also sought the issuance of a
writ of preliminary mandatory injunction for the
return of her paraphernal and exclusive property
then in the administration of the defendant. An
opposition to the hearing of the motion was filed
based on Article 103 of the Civil Code which
states that an action for legal separation shall not
be tried before six months had elapsed since the
filing of the petition. Respondent judge held in
favor of the defendant who claimed that any
prospect for reconciliation will be lost if the
motion was tried.
Held: The court held that Art. 103 of the Civil
Code is not an absolute bar to the hearing of a
motion for preliminary injunction prior to the
expiration of the six-month period. Art. 104 states
that the court may appoint another person to
manage the property should it deem it proper.
The six-month bar should not have the effect of
overriding the provisions such as determination
of the custody of the children, alimony and
support pendent lite.
 Effects of Filing a Petition
FC Article 61: After the filing of the petition for legal
separation, the spouses shall be entitled to live separately
from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or a third
person to administer the absolute community or conjugal
partnership property. The administrator appointed by the
29
court shall have the same powers and duties as those of
guardian under the Rules of Court.
FC Article 62: During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise apply to
the support of the spouse and the custody and support of the
common children.
- The spouses can live separately from each
other;
- The administration of the common property,
whether in absolute community or conjugal
partnership gains, shall be given by the court
to either of the spouses or to a third person,
as is best for the interest of the community;
- The court shall provide for the support
between the spouses and the custody and
support of the common children;
- When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be necessary unless
such spouse voluntarily gives consent.
Alimony “pendent elite”- During the pendency of the suit for
legal separation, it is the duty of the court to grant alimony to
the wife and to make provisions for the support of the
children not in the possession of the father.
- An action for legal separation is based on the
assumption that there is a valid, subsisting
marriage thus, if defendant contends that the
marriage is not valid, alimony “pendente elite”
shal be denied.
Custody of the children may be determined by:
1. Agreement of the spouses which shall not be
disturbed unless prejudicial to the children;
2. Court order which shall be based on the sound
discretion of the judge, taking into account the
welfare of the children.
Dela Vina vs. Villa Real
Facts: Respondent Narcisa Geopano filed a
complaint against Diego delaVina alleging that he
committed acts of adultery with one Ana Calog.
Respondent likewise alleged that she had been
rejected from their conjugal home and had no
means of support. She requested for the decree
of divorce, partition of conjugal property and
alimony. After filing the complaint, respondent
also found that petitioner was trying to alienate
the conjugal property to the prejudice of the
plaintiff. Thus, plaintiff asked that a preliminary
injunction be issued against defendant. The lower
court ruled in favor of plaintiff-respondent as
such, herein petitioner contended that the court
had no jurisdiction over the case because the
domicile residence of the wife was not Iloilo and
that as administrator of the conjugal property, he
had a right to alienate his wife.
Held: The court held that a wife may acquire
another and separate domicile from that of her
husband when the theoretical unity of husband
and wife is dissolved or if husband has given
cause for divorce or where there is separation of
the parties by agreement or a permanent
separation due to desertion or cruel treatment or
where there has been a forfeiture of the benefit
of domicile. Also, petitioner’s claim that he had a
right to alienate responded lacked merit. Court
held that when the harmonious relationship
between husband and wife ceases, it is but right
that the husband’s powers of administration be
curtailed in light of the pendency of the action for
separation.
Reyes vs. Ines-Luciano and Reyes
Facts: Celia Ilustre Reyes filed a complaint for
legals separation against her husband, Manuel J.
C. Reyes on the ground that the latter had
attempted to kill the plaintiff. Plaintiff and herein
respondent asked for support pendent elite for
her and her three children which was granted by
the lower court and respondent judge awarded
plaintiff with P5,000 in monthly support.
Petitioner opposed the ruling of the lower court
on the ground that his wife committed adultery.
Held: The court held that while adultery is a good
defense, it should be established by competent
evidence. In the case at hand, petitioner did not
present evidence to that effect. Also, the plaintiff-
respondent was not asking for mere support but
for her share of the conjugal property or alimony.
Complainant has also proven the grounds of legal
separation through competent evidence.
Property relations of unmarried couples is that of
co-ownership based on actual contribution and
not the presumed half and half as it is in conjugal
partnership.
Pendente Lite: Pending Litigation
 Effects of Decree
Banez vs. Banez
Facts: On Sept. 23, 1996, Aida P. Banez was
legally separated from Gabriel Banez on the
ground of the latter’s sexual infidelity. Included in
the decision is the dissolution of their conjugal
property relations, division of their net conjugal
assets, forfeiture of respondent’s share in favor of
the common children and the urgent ex parte
motion to modify the decision and oblige
petitioner to pay as attorney’s fees 5% of the
total value of respondent’s ideal share. On the
motion for execution, respondent Gabriel
opposed. Trial court denied Aida’s motion for
moral and exemplary damages and litigation fees
but granted the motion for execution. Petitioner
was thereby ordered to post a P1.5 M bond which
she did. The Court of Appeals set aside the writ
for execution.
Held: The court denied the motion of execution n
the ground that execution pending appeal is
allowed when superior circumstances demanding
urgency outweigh the damages that may result
from the issuance of the writ. Otherwise, the writ
will be a tool for oppression and inequity. Such
urgency is not manifested by the case at bar.
30
Legal separation is not one where multiple
appeals are allowed. The issues involved in the
case are of the same marital relationship
between the parties. In this case, dissolution is a
mere incident of legal separation. As such, no
separate action may be taken.
FC Article 63: The decree of legal separation shall have the
following effects:
1. The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be
severed;
2. The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net
profits earned by the absolute community or the
conjugal partnership which shall be forfeited in
accordance with the provisions of Article 43(2);
3. The custody of the minor children shall be awarded
to the innocent spouse, subject to the provisions of
Article 213 of this code; and
4. The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.
- The obligation of mutual fidelity remains. The only
sanction in case of adultery or concubinage shall be
penal.
- After the decree, the obligation of mutual support
between the spouses ceases; however the court may
order that the guilty spouse shall give support to the
innocent spouse.
- A parent shall still have a right to access his child
under court regulation, unless he forfeited the
privilege or if it would injuriously affect the child.
- The guilty spouse shall not be entitled to the
legitime.
- A decree of separation which does not include an
order of division of properties is not an incomplete
judgment. The rules on dissolution and liquidation of
property regime shall be applied when the decree of
legal separation becomes final.
FC Article 64: After the finality of the decree of legal
separation, the innocent spouse may revoke the donations
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be recorded
in the registries of property in the places where the properties
are located. Alienations, liens and encumbrances registered in
good faith before the recording of the complaint for
revocation in the registries of property shall be respected. The
revocation of or change in the designation of the insurance
beneficiary shall take effect upon written notification thereof
to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation has become final.
- The donations subsist if action is not taken before
the death of the spouse.
PD 612 (Insurance Code) Sec. 11: The insured shall have
the right to change the beneficiary he designated in the
policy, unless he has expressly waived this right in said policy.
Dissolution and Liquidation of ACP or CPG
La Rue vs. La Rue
Facts: Upon the divorce of Walter F. La Rue from
Betty J. La Rue in March 1980, the trial court held
that the wife, having been a homemaker, was not
entitled to her claim to the equitable distribution
of marital assets. Petitioner Betty La Rue worked
in the early part of their marriage until Mr. La
Rue, herein respondent, convinced her to stop
working and become a homemaker. The couple
had two children. The divorce only awarded Mrs.
La Rue with alimony and allowance for
healthcare. Their home which was once under the
name of Mrs. La Rue was transferred under Mr. La
Rue prior to the decree of divorce.
Held: Where the spouse has foregone career
opportunities at the behest of the primary wage
earning spouse, and throughout the long
marriage has remained in the home to rear
children and provide suitable environment for the
family, the homemaker spouse shall have an
equitable interest in real property acquired by the
wage earning spouse during their marriage.
Doctrine of Equitable Distribution
- Permits a spouse who has made material economic
contributions toward the acquisition of property
which is titled in the name or under the control of
the other spouse, to claim an equitable interest in
such property in proceeding to seek a divorce.
- The concept of homemaker services is not to be
measured by some mechanical formula but instead
rests on showing that the homemaker has
contributed to the economic well-being of the family
unit.
Custody
• Determining the Best Interest of the Child:
1. Gender and Tender Years Presumption: When
dealing with children of tender years, the natural
mother is presumed in absence of evidence to the
contrary, to be the proper person vested with
custody of such children.
PD 603 Article XVII: …In case of separation of his parents,
no child under five years of age shall be separated from his
mother unless the court finds compelling reasons to do so.
Ex Parte Devine
Facts: Petitioner Christopher P. Devine and
respondent Alice Beth Clark Devine were
separated on March 29, 1979. The couple had
two children considered to be of tender years
based on the Tender Years Presumption. Both
Mrs. Devine and Mr. Devine were found to be fit
to care for the children but on account of the
Tender Years Presumption, custody was awarded
to respondent. Petitioner contended that the
Tender Years Presumption deprived him of the
constitutionally mandated right of equal
protection of the law.
Held: Petition is granted. Case remanded to the
lower court.
31
In common law, the Tender Years Presumption
was in favor of the husband who was the master
of the family. While Alabama recognize the
factual presumption that mothers are inherently
suitable to care for and nurture young children,
the presumption is weakening in other states.
With this presumption, it becomes the father’s
burden to prove that the mother is unfit to care
for their common child. The constitutionality of
this presumption, the court held, may not be
lawfully mandated solely on the basis of sex.
Cervantes vs. Fajardo
Fact: This is a petition for a writ of habeas corpus
of minor Angeline Anne C. Cervantes filed by
Nelson L. Cervantes and Zenaida C. Cervantes
against Gina Carreon Fajardo and Conrado
Fajardo. After the birth of Angeline Anne,
respondents offered the child for adoption to
Zenaida, Gina’s sister, and Nelson, her brother-in-
law. The petitioners have taken care of the child
since she was two weeks old and an Affidavit of
Consent to Adoption was executed. On Aug. 20,
1987, the petition for adoption was granted and
the child’s surname was changed to Fajardo. She
was, from that decision, freed from parental
authority and legal obligation of her natural
parents. On April 1987, petitioners received a
letter from respondents demanding P150,000 for
the return of their adopted child who was taken
by respondent Gina Carreon.
Held: The court reaffirmed the decision of the
lower court. The provision that no mother shall be
separated from a child under five years of age
will not apply where the court finds compelling
reasons to rule otherwise. Because the adoptive
parents are legally married and the respondent’s
relationship with her husband is that of common
law and that respondent has given birth to a child
by another man, the court held that it will be in
the child’s best interest to stay with her adoptive
parents.
Espiritu v. Court of Appeals
Facts: Petitioner Reynaldo Espiritu and
respondent Teresita Masauding met in 1976. In
1977, respondent left for Los Angeles, California
to work as a nurse. In 1984, National Steel
Corporation sent petitioner to Pittsburgh
Pennsylvania as a liason officer and from then on,
petitioner and respondent maintained a common
law relationship. On August 16, 1986, their first
child was born. The couple was married in
October 1987 in the Philippines. After that, they
had another child who was born in 1988. While in
the US, respondent left her children with
Petitioner to continue working in California while
the latter was in Pittsburgh. Petitioner returned to
the Philippines but upon being sent to Pittsburgh
decided to leave his children with his sister
Guillerma Layug. Teresita claimed that she did
not immediately follow her children because she
was afraid that Reynaldo has filed a case of
bigamy against her. In December 1992,
respondent filed a writ for habeas corpus. The
trial court dismissed the petition but the decision
was reversed by the CA.
Held: The presumption that children under seven
years of age can best be taken care of by the
mother is rebuttable. The task of appointing
custody cannot be solely based on the child alone
but several other considerations. The seven year
age is not based on the date petition was filed
but the date decision is rendered. As such, the
preference of the children should be taken into
consideration in deciding the matter of their
custody.
Celis vs. Cafuir
Facts: Respondents Soledad Cafuir and her
husband Jose Simeon appealed the decision of
the lower court granting the writ of habeas
corpus to Ileana Celis and ordering the delivery of
the child to petitioner. Petitioner, after giving
birth to Joel (John) Cafuir turned over custody to
Soledad, fearing the extreme displeasure and
anger of her father. Soledad provided for all the
needs and comforts of the child, including a nurse
hired to care for the child. After marrying Agustin
C. Rivera, petitioner filed the suit for habeas
corpus. Respondents argued that petitioner
executed documents to the effect that she has
renounced the custody of her children. The first
stated that the child was “entrusted” to
respondents while the second stated that Soledad
is the “real guardian” of the child and no one may
adopt the child except for Soledad.
Held: The document cannot be taken to imply
that petitioner has renounced the custody of her
child. The child was, as the first document stated,
merely “entrusted” and such arrangement was
not permanent. Having been emancipated from
her father, Ileana was in the position to care for
her child and as such, has a right to do so.
FC Article 210: Parental authority and responsibility may not
be renounced or transferred except in the cases authorized by
law.
2. Parental unfitness:
Feldman vs. Feldman
Facts: In a habeas corpus proceeding, the lower
court transferred from the mother to the
unmarried father the custody of their two infant
children who previously had continuously resided
with the mother. The couple was divorced in July
1970 on the ground of cruel and inhuman
treatment on the part of the husband who was
involved in extramarital relations prior to the
32
dissolution of their marriage. The wife on the
other hand, had a relationship to another man
subsequent to the decree of divorce. Petitioner
Philip Feldman alleged that he observed a copy of
Screw Magazine (which possesses dubious
redeeming social values) and that he found
letters (some with explicit photographs attached)
which were responses to an advertisement for
another couples or groups for “fun and games,”
in the house of respondent Mady Feldman.
Respondent wife alleged that the advertisement
was done for fun and that the evidence showed
that her private sex life in no way affected the
children and that the children were provided for.
Held: Court held that amorality, immorality,
sexual deviation and aberrant sexual practices do
not, on its face, constitute unfitness for custody.
The trial court’s ruling that parents who
participate in a culture of “free sex” were unfit to
care for children was a dangerous conclusion.
Also, the right of women to engage in private
sexual activities which do not affect her
relationship with her children is protected by her
right to privacy. If courts recognized the rights of
unmarried men to engage in extramarital
relations, there is no reason to impose stricter
standards on women. The evidence of the
obscene materials was likewise out of reach of
the children. As such, they are not, on its face,
detrimental to the children’s welfare.
Santos Sr. vs. Court of Appeals
Facts: Court of appeals granted custody of 6 year
old Leouel Santos Jr., son f petitioner Leouel
Santos Sr. and Julia Bedia-Santos to the latter’s
parents, Leopoldo and Ofelia Bedia. Leouel
Santos Sr. is an army lieutenant while Julia Bedia
was a nurse working in the US. Since release from
the hospital, Leouel Jr. had been in the custody of
respondents. Julia has reportedly sent financial
support while Leouel Santos had done no such
thing. On Sept. 2, 1990, Leouel took his son from
respondents prompting respondents to file a
Petition for Care, Custody and Control of Minor
ward Leouel Santos Jr. Petitioner argued that
private respondents have failed to show that
petitioner was an unfit and unsuitable father and
as such, Article 214 of the Family Code cannot be
applied. Private respondents contended that they
can provide a comfortable life to the child and
that petitioner, being a soldier, will not be able to
care for the child.
Held: Custody granted to petitioner. When a
parent entrusts the child to another, what is given
is merely temporary custody and not a perpetual
renunciation of parental authority. A waiver of
parental authority can only be executed in cases
of adoption, guardianship and surrender to
children’s home or an orphan institution.
Petitioner’s previous inattention cannot be
immediately construed as abandonment. His
effort to keep custody of the child is a sign that
he is willing to rectify his mistakes.
• Role of the Child’s Preference
FC Article 49: …The court shall give paramount consideration
to the moral and material welfare of said children and their
choice of the parent with whom they wish to remain as
provided for in Title IX.
FC Article 213: In case of separation of the parents, parental
authority shall be exercised by the parent designated by the
court. The court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent is unfit.
No child shall be separated from the mother unless the court
finds compelling reasons to order otherwise.
David v. CA
Facts: Petitioner Daisie T. David worked as
secretary of private respondent Ramon R. Villar
who was then married and had a family. They had
intimate relations which produced three children,
Christopher, Christine and Cathy. Private
respondent’s wife was aware of the existence of
the illegitimate children. Christopher was taken
by respondent on a trip to Boracay. Upon their
return, respondent refused to return the child
prompting petitioner to file for a write of habeas
corpus. The trial court granted the petition but
the Court of Appeals reversed the decision on the
ground that the trial court had no jurisdiction over
the case as the children were borne out of
adulterous relations. Temporary custody was
awarded to respondent until such time that the
issue on custody and support was determined in
a proper case. Petitioner contended that the writ
of habeas corpus applied to all cases of illegal
confinement or detention or by which the rightful
custody og any person is withheld.
Held: Article 213 of the FC states that custody of
a child under six will be given to the mother
unless the court deems it proper to rule
otherwise. Absent any showing that petitioner is
unfit (although admittedly, she is not as well-off
as respondent), custody shall be given to her. As
the child is over the presumed tender years,
custody must still remain with the mother as the
child has categorically expressed preference to
live with his mother.
Pizarro vs. Vasquez
Facts: This suit for obtaining support from
defendant was instituted by Maria Pizarro and her
minor children, Gloria, Julita and Lorenzo. Plaintiff
and defendant separated on the ground that the
latter committed acts of infidelity and cruelty.
Defendant denied the claim and alleged that
there is no contract of separation and that Maria
Pizarro committed acts of adultery. The evidence
of said adulterous relations was the birth of
Lorenzo 11 months after the couple separated.
33
Petitioner explained that they had sexual
intercourse sometime in November 1933 during
the town fiesta in the belief that defendant had
changed.
Held: Claims of plaintiff that defendant had kept a
mistress and had maltreated her were not
contradicted. Also, absent any evidence that
plaintiff indeed committed adultery and
considering the prima facie presumption of
innocence, plaintiff should be given support by
the defendant.
Laxamana vs. Laxamana
Facts: Petitioner Reymond Laxamana was a
graduate of Bachelor of Laws while respondent
Ma. Lourdes Laxamana held a degree in Banking
and Finance. Upon marriage, respondent quit her
job and became a full time housewife while
petitioner managed buy and sell, fishpond and
restaurant businesses. The couple had three
children. In October 1991, petitioner was confined
in Estrellas Home Care Clinic for being a drug
dependent. He was again confined in 1996 for
rehab. In 1997, petitioner was declared drug free
but respondent alleged otherwise stating that
petitioner has become irritable since his return
and had even maltreated her at one point.
Respondent abandoned petitioner in June 1999
taking the children with her. Petitioner filed a writ
for habeas corpus for visitation rights which the
court granted. The parties were ordered to
undergo psychological evaluation which they
passed except for the psychologist’s opinion that
petitioner, in his belief, was not completely drug
free.
Held: Case was remanded. It is the duty of the
court to hold a trial notwithstanding the
agreement of the parties to submit the case for
resolution on the basis of a psychiatric report.
While petitioner had a history of drug
dependence, records were inadequate to show
his moral, financial and social well-being. There is
therefore no proof that he is unfit to care for his
children. The court also failed to consider the
preference the choice of the children who were
then 14 and 15 years old.
• Presumption of Primary Care Taker
Garska vs. McCoy
Facts: Appelant Gwendolyn McCoy was pregnant
with her first child, Jonathan Conway, at 15 years
old. During pregnancy, Michael Garska, herein
petitioner, did not give any support. When the
child was born, petitioner sent food and diapers.
The baby developed a chronic respiratory
infection and to be able to use the United Mine
Worker’s medical insurance of her grandfather,
appellant agreed to the adoption of Jonathan by
her grandparents. The petition was dismissed on
the ground that the child had not lived with the
grandparents for the requisite six months. Upon
learning the action for adoption, petitioner filed
for a writ of habeas corpus which was granted by
the lower court.
Held: While the tender years presumption in favor
of the mother is no longer in effect, custody
should still be granted to appellant on the basis
that she has been the primary caretaker of the
child in question. Logically, the primary caretaker
parent is not in superior financial position as
such, the material welfare of the child depends on
the award of support. Court therefore held that
the presumption is in favor of the primary
caretaker parent if he or she meets the minimum
objective standard for being a parent. The
presumption shall only apply to children of tender
years. Custody was granted to Gwendolyn McCoy.
Court held that manipulation of the welfare
system to provide for the child’s healthcare shall
not be construed as an attempt to abandon the
child.
• Other Effects
CC Article 372: When legal separation has been granted, the
wife shall continue using her name and surname employed
before the legal separation.
- This is so because her married status is not affected
by the separation.
- After legal separation, the marriage bonds are not
severed.
CC Article 370: A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's
surname or
(3) Her husband's full name, but prefixing a word
indicating that she is his wife, such as "Mrs."
Matute vs. Macadalo
Facts: Petitioner Rosario Matute and private
respondent Armando Medel were legally
separated on the ground of adultery committed
by petitioner with her brother-in-law. Custody of
the four minor children was thereby awarded to
Armando. With permission from private
respondent, petitioner brought her children to
Manila to attend her father’s wake. Thereafter,
she filed a civil suit, praying for custody of her
children whom she alleged has expressed
preference to stay with her. Three of the said
children were no longer of “tender years.”
Armando moved to have Rosario charged with
contempt of court for disobeying the court’s
decision to grant custody to Armando but the
court did not accede owing to the fact that
Armando consented. However, the court did not
grant custody to petitioner. Petitioner argued that
the act of adultery she was charged with does not
constitute moral depravity. Armando was found
34
to be living with a different woman and such
relations were likewise adulterous.
Held: Alleged errors by respondent were merely
errors of judgment and not errors of jurisdiction.
Laperal vs. Republic of the Philippines
Facts: Elisea Laperal has been legally separated
from her husband Enrique Santamaria. During
their marriage, petitioner used the latter’s
surname. She prayed that she be allowed to use
her maiden name considering that she and her
husband had not lived together for a long time.
Petition was opposed b y the City Attorney of
Bagiuo but in a motion for reconsideration, the
petition was granted on the basis that the use of
the married name will give rise to confusion in
finances and the eventual liquidation of the
conjugal assets.
Held: The language of the statute is mandatory
and a woman shall continue using her married
name because her married status is unaffected
by her legal separation. The fact of legal
separation alone is not a sufficient ground to
justify a change of name.
 Reconciliation
FC Article 65: If the spouses reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed
with the court in the same proceeding for legal separation.
FC Article 66: The reconciliation referred to in the preceding
article shall have the following consequences:
1. The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
2. The final decree of legal separation shall be set aside
but the separation of property and any forfeiture of
the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their
former property regime.
The court’s order containing the foregoing shall be recorded in
the proper civil registries.
FC Article 67: The agreement to revive the former property
regime referred to in the preceding Article shall be executed
under oath and shall specify:
1. The properties to be contributed anew to the
restored regime;
2. Those to be retained as separate properties of each
spouse; and
3. The names of all their known creditors, their
addresses and the amounts owing to each.
The agreement of revival and the motion for its approval
shall be filed with the court in the same proceeding for
legal separation, with copies of both furnished to the
creditors named therein. After due hearing, the court
shall, in its order, take measures to protect the interest
of creditors and such order shall be recorded in the
proper registries of properties.
The recording of the order in the registries of property
FC Article 26 vs. CC Article 15
shall not prejudice any creditor not listed or not notified
unless the debtor-spouse has sufficient separate
properties to satisfy.
- The word ‘revive’ implies that the conjugal property
regime prior to the decree of legal separation would be
restored however, parties are still allowed to stipulate
what would be brought into the revived property regime.
- Reconciliation must be a voluntary mutual
agreement to live together as husband and wife.
Filing of manifestation is only needed to terminate
the case in court and for purposes of future property
relations of the spouses.
- If the reconciliation takes place after the decree of
legal separation has been handed down by the court,
the decree is set aside, and all the orders in that
decree will have no effect, except as to the property
relations of the spouses. The community of property
or conjugal partnership of gains is not automatically
revived.
- After the spouses have reconciled, a new action for
legal separation can be based only on the
subsequent or other causes, but not on the causes
already pardoned.
 Divorces
Foreign Divorces
The Nationality Principle
CC Article 15: Laws relating to family rights and duties,
or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines even though
living abroad.
FC Article 26: All marriages solemnized outside the
Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as
such, shall also be valid in this country, except in those
prohibited under Articles 35 (1), (4), (5), and (6), 36, 37
and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have the
capacity to remarry under Philippine laws.
- General rule is a marriage valid where it was
celebrated is valid everywhere.
- Exceptions to the general rule:
o Marriages which are contrary to the law of
nature and good morals as generally
recognized in Christian countries (ex.
polygamous and incestuous marriages).
o Marriages which the local law-making power
has declared shall not be allowed any
validity.
- Foreign marriages under Articles 35 (those
contracted below 18, those polygamous and
bigamous, those contracted through mistake in
identity and those void under Article 53), 36
(Psychological incapacity), 37 (Incestuous Marriages)
and 38 (Marriages void by reason of public policy).
- Laws on legal capacity to marry are binding to
Filipinos in all countries.
- While the forms of entering into the contract of
marriage are to be regulated by the law where it is
celebrated, the essentials of the contract depend
upon the law of the domicile for the parties.
- Article 26 corrects the riduculous situation wherein a
Filipino who married a foreigner remains married
inspite of a divorce decree issued in a different
country.
- Article 26 is more restrictive in that it requires that
the divorce be secured by the foreign spouse and
35
 that Filipinos naturalized as citizens of other hearing to establish the citizenship. Quita has
countries are exmept from the application of the law. apparently testified that she has been a US
citizen since 1954.
Van Dorn vs. Romillo
Facts: Petitioner Alicia Reyes Van Dorn is a citizen
Llorente vs. Court of Appeals
of the Philippines while private respondent
Facts: Lorenzo Llorente was an enlisted
Richard Upton is a citizen of the US. The couple
serviceman of the US Navy from 1927 to 1957. In
was married in Hong Kong and had two children.
1937, he and Paula were married. Before the war,
They lived together in the Philippines until their
Lorenzo Llorente went to the United States
divorce in 1982. They were divorced in Nevada.
leaving Paula in the Philippines. In 1943, Lorenzo
After the divorce, petitioner married Theodore
acquired US Citizenship. Upon his return after the
Van Dorn. Private respondent filed a suit
war, he discovered that his wife was pregnant
claiming that the Galleon shop, petitioner’s
and was cohabiting with his brother Ceferino. She
business is conjugal property. Petitioner’s motion
later gave birth to a son by the adulterous
to dismiss was not granted by respondent judge,
relation. Lorenzo refused to forgive Paula and the
Hon. Manuel V. Romillo Jr. According to petitioner,
couple drew an agreement which stated that
respondent is estopped from claiming the alleged
family allowances would be suspended, marital
conjugal property because of the representation
union will be dissolved and a separate agreement
he made in the divorce proceedings that they had
on the conjugal property was to be made. The
no community of property.
agreement was duly signed and notarized. In
Held: There is no question as to the validity of
1951, Lorenzo filed for a divorce and which was
that Nevada divorce or divorce in any state in the
decreed one year later. Upon his return he
United States. The decree is binding on private
married Alicia who had no knowledge of his prior
respondent as an American Citizen. Aliens may
marriage. In 1981, a will was executed to the
obtain divorces abroad, which may be recognized
effect that all his property will be given to Alicia
in the Philippines provided that they are valid
and his kids by her. In 1983, Lorenzo petitioned
according to their national law. As such,
for Alicia to be the administrator of their conjugal
respondent is no longer the legal husband of
property which was denied as he was still alive.
herein petitioner.
Lorenzo died on June 1985 and a few months
after his death, Paula filed a petition for letters of
Quita vs. CA and Dandan
administration as the surviving spouse of
Facts: Fe Quita married Arturo Padian in the
Lorenzo. The lower court held that Lorenzo’s
Philippines in 1941. The couple agreed to live
marriage with Alicia was void and that Paula
separately until 1950 when petitioner sued Arturo
should get 1/3 of the properties.
for divorce. After the decree of divorce Fe
Held: Divorce obtained in a foreign country is
married a certain Felix Tupaz whom she divorced
recognized in this jurisdiction. Lorenzo was no
and then a certain Wernimont. Arturo died in
longer a Filipino Citizen when he obtained
1972 without a will. Lino Javier Inciong filed a
divorce.
petition for the right to administer the estate of
Arturo. Blandina Dandan, claiming to be the
Garcia a.k.a. Recio vs. Recio
surviving spouse of Arturo, along with her six
Facts: Rederick Recio, a Filipino, was married to
children filed their opposition to Javier, praying
an Australian, Editha Samson, in Malabon on
that the administration of the estate be granted
1987. The couple lived together as husband and
instead to their lawyer. In 1987, petitioner moved
wife in Australia but on 1989 they divorced. In
for immediate declaration of the heirs of
1992, Recio became an Australian citizen. He
respondent and distribution of his estate. The
married Grace Garcia two years later and in their
Dandan family did not appear in court. Arturo’s
marriage license, he declared that he was a
brother, Ruperto and Fe Quita were declared the
Filipino. A year after their marriage, Garcia and
only heirs of Arturo. The trial court held that a
Recio started living separately and their assets
foreign divorce sought by Filipinos after the
were divided in 1996. Grace filed a petition for
effectivity of the Civil Code is not recognized in
nullity on the ground of bigamy alleging that she
this jurisdiction. As such, Blandina was not a
learned of Recio’s prior marriage to Samson only
legitimate spouse. As proof of filiation of the
in November of 1997. Recio argued that he
children was presented, partial reconsideration
revealed his prior marriage in 1993. In 1998, a
was granted by the court in favor of Arturo’s
divorce from Garcia was secured as such,
illegitimate children.
respondent moved to dismiss petition of Garcia
Held: The mere fact that petitioner declared
on the ground that there was no longer a cause of
Arturo was Filipino and thus remained legally
action.
married to her in spite of the divorce implies that
Held: The Case was remanded to the trial court
Quita was no longer a Filipino citizen at that time.
for the purpose of obtaining evidence to show
As such, the trial court should have conducted a
36
respondent’s legal capacity to marry. The best
evidence of divorce is the decision itself as
authenticated by the consular officer. Proof of the
existence of provision on divorce and the alleged
divorce decree are likewise necessary to show
capacity to remarry. It was found that no decree
of absolute divorce has been given but divorce in
the sense of legal separation.
- There is no judicial cognizance of foreign laws
there is therefore an additional requirement now,
to show the effects of the divorce decree.
Intrinsic vs. Extrinsic
- In intrinsic there is absence of the
essential requisites (Article 15 applies).
- In extrinsic, lex law psy celebrationis or
valid in the country, valid everywhere.
- Extrinsic pertains to the formalities or
formal requisites which ay be dictated by
the country decreeing the divorce (Article
26 applies).
- The same is true for rules of succession.
Muslim Divorces
Yasin vs. Shari’a District Court
Facts: Hatima Yasin, a Muslim Filipino of legal
age, was married to Hadji Idris Yasin until their
divorce in May 13, 1984. After their divorce, Hadji
Idris Yasin contracted another marriage and as
sch, petitioner asked that she be allowed to
resume use of her maiden name and surname,
Hatima Centi y Saul. The Shari’a court stated that
she did not file the petition in sufficient form and
substance provided for in Rule 103 of the Rules of
Court. Petitioner filed a motion for
reconsideration stating that the petition she filed
is not covered by the rules of court but is merely
a petition to resume the use of her maiden name
and surname after the dissolution of her marriage
by divorce.
Held: The true and real name of a person is that
given to him and entered into the civil register.
While it is true that under Article 376 of the Civil
Code, no person can change his name or
surname without judicial authority, nonetheless,
the only name that may be changed is the true
and official name. Petitioner is not seeking to
change her registered name but for her to be
allowed to resume the use of it. The procedures
for change of name under the Rules of Court shall
not be applied to judicial confirmation of the right
of a divorced woman to resume her maiden name
and surname.
Code of Muslim Personal Laws
Art. 46. Divorce by talaq. — (1) A divorce by talaq may be
effected by the husband in a single repudiation of his wife
during her non-menstrual period (tuhr) within which he has
totally abstained from carnal relation with her. Any number of
repudiation made during one tuhr shall constitute only one
repudiation and shall become irrevocable after the expiration
of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or
second time, shall have the right to take her back (ruju)
within the prescribed 'idda by resumption of cohabitation
without need of a new contract of marriage. Should he fail to
do so, the repudiation shall become irrevocable (Talaq bain
sugra).
Art. 47. Divorce by Ila. — Where a husband makes a vow to
abstain from any carnal relations (ila) with his wife and keeps
such ila for a period of not less than four months, she may be
granted a decree of divorce by the court after due notice and
hearing.
Art. 48. Divorce by zihar. — Where the husband has
injuriously assimilated (zihar) his wife to any of his relatives
within the prohibited degrees of marriage, they shall mutually
refrain from having carnal relation until he shall have
performed the prescribed expiation. The wife may ask the
court to require her husband to perform the expiation or to
pronounce the a regular talaq should he fail or refuse to do
so, without prejudice to her right of seeking other appropriate
remedies.
Art. 49. Divorce by li'an. — Where the husband accuses his
wife in court of adultery, a decree of perpetual divorce may
be granted by the court after due hearing and after the
parties shall have performed the prescribed acts of
imprecation (li'an).
Art. 50. Divorce by khul'. — The wife may, after having
offered to return or renounce her dower or to pay any other
lawful consideration for her release (khul') from the marriage
bond, petition the court for divorce. The court shall, in
meritorious cases and after fixing the consideration, issue the
corresponding decree.
Art. 51. Divorce by tafwid. — If the husband has delegated
(tafwid) to the wife the right to effect a talaq at the time of
the celebration of the marriage or thereafter, she may
repudiate the marriage and the repudiation would have the
same effect as if it were pronounced by the husband himself.
Art. 52. Divorce by faskh. — The court may, upon petition of
the wife, decree a divorce by faskh on any of the following
grounds :
(a) Neglect or failure of the husband to provide support for
the family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing
him to imprisonment for at least one year; .chan robles
virtual law library
(c) Failure of the husband to perform for six months without
reasonable cause his marital obligation in accordance with
this code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable
disease which would make the continuance of the marriage
relationship injurious to the family;
(f)Unusual cruelty of the husband as defined under the next
succeeding article; or
37
(g) Any other cause recognized under Muslim law for the
dissolution of marriage by faskh either at the instance of the
wife or the proper wali..chan robles virtual law library
Art. 53. Faskh on the ground of unusual cruelty. — A decree
offaskh on the ground of unusual cruelty may be granted by
the court upon petition of the wife if the husband:
(a) Habitually assaults her or makes her life miserable by
cruel conduct even if this does not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous
life or attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or
prevents her from exercising her legal rights over it;
(d) Obstructs her in the observance of her religious practices;
or
(e) Does not treat her justly and equitably as enjoined by
Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. — A talaq or
faskh, as soon as it becomes irrevocable, shall have the
following effects:
(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance
with Article 78 of this code;
(d)The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been affected after the
consummation of the marriage, or one-half thereof if effected
before its consummation; .chan robles virtual law library
(e) The husband shall not be discharged from his obligation to
give support in accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage
settlements, shall be dissolved and liquidated.
Art. 55.Effects of other kinds of divorce. — The provisions of
the article immediately preceding shall apply to the
dissolution, of marriage by ila, zihar, li'an and khul', subject
to the effects of compliance with the requirements of the
Islamic law relative to such divorces.
Section 2. 'Idda. —
Art. 56. 'Idda defined. — 'Idda is the period of waiting
prescribed for a woman whose marriage has been dissolved
by death or by divorce the completion of which shall enable
her to contract a new marriage.
Art. 57. Period. — (1) Every wife shall be obliged to observe
'idda as follows:
(a) In case of dissolution of marriage by death, four months
and ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three
monthly courses; or
(c) In case of a pregnant women, for a period extending until
her delivery.
(2) Should the husband die while the wife is observing 'idda
for divorce, another 'idda for death shall be observed in
accordance with paragraph 1(a).
.chan robles virtual law library
FC Article 100: The separation in fact between husband and
wife shall not affect the regime of absolute community except
that:
1. The spouse who leaves the conjugal home or refuses
to live therein, without just cause, shall not have the
right to be supported;
2. When the consent of one spouse to any transaction
of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
3. In the absence of sufficient community property, the
separate property of both spouses shall be solidarily
liable for the support of the family. The spouse
present shall, upon proper petition in a summary
proceeding, be given judicial authority to administer
or encumber any specific separate property of the
other spouse and use the fruits of proceeds thereof
to satisfy the latter’s share.
- Separation of fact refers to the actual definite
separation of the persons of husband and wife,
thereby terminating cohabitation or common life
under the same roof without judicial order. There is
no separation of fact if business affairs only require
that they occupy separate residences but their
relations continue to be intimate and friendly.
- The spouse who leaves the conjugal home without
justification loses the right to be supported by the
other spouse but his obligation to support the latter
is not extinguished.
- Judicial authorization is necessary when the consent
of one spouse is necessary for a transaction but
cannot be obtained.
FC Article 127: The separation in fact between the husband
and wife shall not affect the regime of conjugal partnership,
except that:
1. The spouse who leaves the conjugal home or refuses
to live therein, without just cause, shall not have the
right to be supported;
2. When the consent of one spouse to any transaction
of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
3. In the absence of sufficient conjugal partnership
property, the separate property of both spouses shall
be solidarily liable for the support of the family. The
spouse present shall upon petition in summary
proceeding, be given judicial authority to administer
or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof
to satisfy the latter’s share.
FC Article 239: When a husband and wife are separated in
fact, or one has abandoned the other and one of them seeks
judicial authorization for a transaction where the consent of
the other spouse is required by law but such consent is
withheld or cannot be obtained, a verified petition may be
filed in court alleging the foregoing facts. The petition shall
attach the proposed deed, if any, embodying the transaction
and, if none, shall describe in detail the said transaction and
state the reason why the required consent thereto cannot be
secured. In any case, the final deed duly executed by the
parties shall be submitted and approved by the court.
FC Article 242: Upon the filing of the petition, the court shall
notify the other spouse, whose consent to the transaction is
required, of said petition, ordering said spouse to show cause
why the petition should not be granted, on or before the date
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set in said notice for the initial conference. The notice shall be
accompanied by a copy of the petition and shall be served at
the last known address of the spouse concerned.

FC Article 246: If the petition is not resolved at the initial

conference, said petition shall be decided in a summary
hearing on the basis of affidavits, documentary evidence or
oral testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the witnesses to
be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses.

FC Article 247: The judgment of the court shall be

immediately final and executory.

Perez vs. Court of Appeals

Facts: Rey Perez, a doctor of medicine practicing
in Cebu and his wife, Nerissa a registered nurse
and herein petitioner were married in December
1986. Their marriage produced one child born in
July 1992. Petitioner began working in the US on
October 1988 and became a resident alien in
1992. She was able to construct a house in
Mandaue using her earnings. Respondent stayed
with her in the US twice while she was pregnant
and when she gave birth to Rey Perez II. Unlike
his wife, he had only a tourist visa and was
unemployed in the US. The family went back to
Cebu in 1993 but after a few weeks, Nerissa went
back to the US because the husband preferred to
stay behind to take care of his sick mother.
Nerissa filed a petition for a writ of habeas corpus
asking respondent Rey Perez to surrender
custody of their son to her. Lower court granted
the custody to the mother based on Article 213 of
the Family Code. CA reversed the decision and
granted the custody to the father instead.
Held: Article 213 of the FC provides that “in case
of separation of parents, no child under 7 years of
age shall be separated from the mother unless…”
Since the code did not qualify the word
separation to mean “legal separation” couples
separated in fact are still covered by its terms.
The provision likewise mandates that the child
under seven years of age shall be in the custody
of the mother absent any showing that the
mother is unfit to care for the child. In the case
herein, the Petitioner alleged that the mother will
not be able to take care of the child as she works
as a nurse. The Court however held that such a
supposition is unfounded especially as there are
means by which the mother could take care of
the child despite the demands of her profession.

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